REESE    LIBRARY 

OP  THK 

UNIVERSITY   OF    CALIFORNIA. 

Received v^S^^^C^C*? 

Accessions  No,_-?^/_^O'6 Shelf 'No. _. 


THE  INTERPRETATION  AND  CONSTRUCTION 


OF 


STATUTORY  AND  CONSTITUTIONAL  LAW. 


BY 


THEODORE  SEDGWICK, 

AUTHOR  OF  A  "TREATISE  ON  T&S  MEASURE  OF  DAMAGES." 


WITH  NUMEROUS   ADDITIONAL  NOTES 


BY 

JOHN    NOETON    POMEEOY,    LL.D., 

AUTHOR    OF   "AN   INTRODUCTION  TO   CONSTITUTIONAL   LAW," 
AND  OF  "AN   INTRODUCTION  TO  MUNICIPAL   LAW." 


"  Maximum  interpreiatianis  juridicce  mysterium." 

a;.  Test.  Fact  et  Ex.  XII.  §  ix. 


UNIVERSITY 


lv  : 
BAKER,  VOORHIS   &   CO.,  PUBLISHERS, 

66    NASSAU    STREET. 
1ST4. 


Entered  according  to  the  Act  of  Congress,  in  the  year  1874,  by 

RIDLEY  WATTS,  Executor  of  THEODORR  SEDOWICK, 
In  the  office  of  the  Librarian  of  Congress,  at  Washington. 
JL.  /       <J  «T" 


BAKER  &  GOI<WIN,  Printers, 
26  Park  Kow,  N.  Y. 


TO   THE 


MEMORY      OF      MY      WIFE 


TVHIS       VOLUME 


IS 


DEDICATED. 


THE  treatise  upon  the  Interpretation  and  Application  of  Stat- 
utory and  Constitutional  Law,  like  that  upon  the  Measure  of  Dam- 
ages by  the  same  author,  has  been,  from  the  date  of  its  publication, 
regarded  as  a  legal  classic.  Based,  in  the  main,  upon  the  decisions 
of  American  courts,  and  discussing  the  principles  of  statutory  con- 
struction as  they  have  been  expounded  and  illustrated  by  those 
tribunals,  it  has  been  far  more  useful  to  the  American  lawyer,  and 
has  been  more  readily  accepted  as  a  guide  and  helper  by  American 
judges,  than  any  work  upon  the  same  subject  founded  chiefly  upon 
Englisn  precedents  and  drawing  its  materials  from  English  sources. 
Originally  published  in  the  year  1S57,  the  first  impression  was  long 
ago  exhausted,  and  a  new  edition  has  long  been  demanded.  This 
want  is  now  supplied,  and  a  new  edition  is  offered  to  the  profession. 
It  is  proper  for  the  editor  to  explain  its  plan,  and  the  nature  and 
scope  of  the  additions  which  he  has  made. 

Mr.  Sedgwick's  text  has  been  left  unchanged,  and  the  additional 
matter  has  all  been  placed  in  the  form  of  notes.  These  notes,  how- 
ever, have  not  been  broken  up  into  numerous  and  short  portions, 
and  connected  with  every  paragraph  or  proposition  of  the  text.  All 
the  cases  bearing  upon  each  general  topic  discussed  by  the  author, 
and  the  remarks  deemed  appropriate  to  be  made  upon  them,  have 
been  collected  and  arranged  together,  and  the  notes  are  thus  essays 
more  or  less  elaborate,  each  treating  at  large  upon  an  entire  doctrine 
or  principle  of  the  law.  In  the  first  part  of  the  treatise, — that 
which  is  concerned  with  the  construction  and  interpretation  of  ordi- 
nary statutes, — the  additions  chiefly  consist  of  the  American  decisions 
bearing  upon  the  text,  brought  down  to  the  time  when  this  edition 
was  passing  through  the  press,  with  only  so  much  of  comment  as 
was  necessary  to  explain  them  and  to  develop  the  principles  which 


Vi  PREFACE   TO   THE   SECOND   EDITION. 

they  announce.  This  course  seemed  to  be  entirely  sufficient,  because 
the  author's  treatment  was  exhaustive,  and  nothing  more  was  needed 
than  the  further  illustration s  which,  the  recent  cases  furnish.  In 
the  second  part  of  the  work, — that  which  is  concerned  with  the 
guaranties  of  private  rights  contained  in  the  State  and  national  con- 
stitutions,— the  additions  made  by  the  editor  are  much  more  exten- 
sive. The  notes  upon  these  constitutional  provisions  are,  in  fact,  in- 
dependent essays,  complete  in  themselves.  It  was  the  design  of  the 
editor  that  his  discussions  upon  the  right  of  eminent  domain,  trial 
by  jury,  citizenship,  vested  rights,  the  titles  and  subjects  of  statutes, 
statutes  impairing  the  obligation  of  contracts,  and  other  similar  sub- 
jects, should  embrace  all  the  points  which  have  ever  been  determined, 
and  refer  to  all  the  important  cases,  in  addition  to  those  quoted  in 
the  text,  which  have  ever  been  decided,  by  the-  State  and  national 
tribunals.  The  extent  and  scope  of  the  additions  can  be  partially 
inferred  from  the  fact  that  more  than  two  thousand  five  hundred 
citations  are  to  be  found  in  the  editor's  notes.  The  author's  notes 
can  be  easily  distinguished  from  those  added  by  the  editor:  the  for- 
mer being  printed  in  two  columns,  while  the  latter  extend  across 
the  entire  page,  and  are  separated  from  the  original  matter  by  a 
dividing  line.  The  Index  has  been  entirely  rewritten,  and  will  fur- 
nish an  easy  reference  to  all  the  matters  contained  in  the  text  or  in 
the  notes.  An  attempt  has  been  made,  by  a  minute  subdivision  of 
heads  and  by  numerous  cross-references,  to  make  this  necessary  part 
of  every  law  book  as  full  and  as  accurate  as  possible. 

In  conclusion,  I  desire  to  acknowledge  in  the  fullest  manner  the 
assistance  rendered  in  the  preparation  of  tins  edition  by  F.  V.  BALCH, 
Esq.,  of  the  Boston  Bar.  To  his  diligence  and  accuracy  are  due  the 
examination  and  selection  of  a  large  number  of  the  cases  which  have 
been  cited,  and  the  matter  which  he  thus  furnished  forms  a  very 
considerable  portion  of  the  substance  of  the  notes  which  were  ar- 
ranged and  composed  by  the  editor. 

JOHN  N.ORTCM   POMEROY. 

ROCHESTER,  N.  Y.,  Oct.  7th,*  1874. 


PREFACE  TO   THE  FIRST  EDITION. 


A  VERY  slight  glance  at  the  field  of  jurisprudence  is  sufficient 
to  convince  us  of  the  extent  to  which  written  law  is  making  in- 
roads upon  the  field  of  unwritten,  customary,  or  common  law. 

One  branch  after  another  of  the  great  topics  of  our  science,  be- 
come subjects  of  legislation.  Statutes,  codes,  and  constitutions  suc- 
ceed each  other,  and  in  our  time,  with  greatly  increased  rapidity, 
threaten  finally  to  absorb  every  topic  of  jurisprudence. 

This  process  commenced  long  since,  and  is  now  going  on,  on 
the  continent  of  Europe,  in  England,  and  this  country,  with  equal 
certainty,  if  not  with  equal  rapidity.  Here  particularly,  in  the  ab- 
sence of  the  State  machinery  and  the  social  and  religious  organiza- 
tions of  the  Old  World,  the  very  essence  of  our  system  may  be  said 
to  be  the  government  of  Written  Law. 

This  volume  then,  is  an  attempt  to  state  the  rules  which  con- 
trol the  interpretation  and  application  of  written  law  as  it  exists 
in  the  shape  of  Statutes  and  Constitutions  ;  and  if  it  succeed  at 
all  in  giving  more  certainty  and  facility  to  the  administration  of 
this  portion  of  the  great  science  of  justice,  my  object  will  have 
been  attained. 

It  is  my  duty  to  refer  to  those  who  have  preceded  me  in  this 
path.  There  are  various  works  on  the  subject  of  constitutional 
law,  among  which  the  most  prominent  is  that  of  Mr.  Justice 
Story,  confined,  however,  to  the  Constitution  of  the  United  States. 
Mr.  Smith's  treatise,  one  of  much  labor  and  research,  treats  of 
statutory  and  constitutional  law  generally,  and  is  the  only  one 
we  have  which  can  be  properly  said  to  treat  of  the  same  subjects 
as  this  volume.  The  well  known  work  of  Sir  Fortunatus  Dwarris, 
in  the  second  edition  of  which  he  has  been  assisted  by  Mr.  Amyot, 


Viil  PREFACE   TO   THE   FIRST   EDITION. 

is  confined  to  Statutes.  It  is  a  work  of  great  soundness  as  well 
as  of  great  originality  of  thought  ;  and  my  frequent  references 
show  at  once  the  extent  of  my  obligations  to  it,  and  my  profound 
sense  of  its  ability  and  value. 

In  taking  leave  of  .a  task  which  has  beguiled  many  hours  of 
their  weariness — which  has  furnished  a  partial  solace  for  the  sad- 
ness of  many  others,  it  behooves  me  to  say  that  no  one  can  be 
more  aware  than  myself  of  the  many  imperfections  of  this  volume  : 
just  in  proportion  to  my  conviction  of  the  importance  and  magni- 
tude of  the  subject,  is  my  sense  of  the  deficiencies  in  my  treat- 
ment of  it. 

It  is  proper  to  add  that  I  have  intended  carefully  to  avoid 
the  discussion  of  topics  of  a  political  nature,  or  the  expression  of 
opinions  having,  directly  or  indirectly,  any  political  bearing.  To 
the  best  of  my  ability,  I  have  made  the  treatise  one  purely  of  a 
legal  character. 

I  submit  the  work  to  the  judgment  of  the  learned  and  able 
body  'of  men  to  whose  studies  it  chiefly  appertains, — who  are  most 
able  to  discern  and  detect  its  errors  and  defects,  and  who  at  the 
same  time  will  most  readily  recognize  any  claim  of  merit  or  util- 
ity that  it  may  possess. 

T.    S. 

NEW   TOKK,    May,    1857. 


CONTENTS. 


CHAPTER  I. 

PLAN   OF   THE  WORK. 

The  Sources  of  Municipal  or  Civil  Law  usually'Twofold  :  Usage,  or  Common  Law; 
and  Statute  Law. — In  America  a  Third  superadded :  Constitutional  Law. — The 
last  Two  written ;  of  these,  the  Interpretation  and  Construction  belong  to  the 
Judiciary. — The  Object  of  this  Volume,  to  define  the  Limits  of  Legislative  and 
Judicial  Power;  and  to  give  the  Rules  which  govern  the  Application  of  Consti- 
tutional and  Statute,  in  other  words,  of  Written  Law p.  1 

Additional  Notes. — Presumption  that  the  Law  of  a  Foreign  State  is  the  same  as  that  of  the  Forum. — The 
Doctrine  discussed,  12, 13.  Whether  Christianity  is  part  of  the  Law. — Sunday  Laws. — Blasphemy. 
— Bible  and  Religious  Teaching  in  Public  Schools,  14. 

CHAPTER    II. 

GENERAL  CLASSIFICATION  AND  DIVISION  OF   STATUTES. 

Division  of  Statutes. — In  England  divided  into  Ancient  and  Modern. — Division  in 
the  United  States. — Public  and  Private  Acts. — Declaratory  and  Innovating 
Statutes. — Affirmative  and  Negative  Statutes. — Remedial  Statutes. — Penal  Stat- 
utes.— Repealing  Statutes 21 

Additional  Notes. — Affirmative  Language  implying  a  Negative. — Expressio  unius,  31. 

CHAPTER   III. 

THE  PARTS   OF   STATUTES. 

Blackstone's  Enumeration  of  the  Parts  of  a  Statute:  Practical  Division. — Title. — 
Commencement. —  Preamble.  —  Purview.  —  Clauses. —  Provisos. —  Exceptions. — 
Schedules 38 

Additional  Notes. — The  Title  and  Sub-Titles,  39.  A  Preamble,  45.  Saving  Clauses,  47.  Proviso,  effect 
of,  49, 50. 

CHAPTER   IV. 

THE  ATTRIBUTES  AND  INCIDENTS  OF   STATUTES.' 

Application  for  the  Passage  of  Statutes. — Contracts  to  obtain  the  Passage  of  Stat- 
utes, or  to  withdraw  Opposition. — Authority  and  Jurisdiction  of  Statutes. — 
Time  when  Statutes  take  effect. — Effect  of  Statutes  to  avoid  Contracts  in  viola- 
tion of  them. — Remedies  for  the  Violation  of  Statutes. — Statutory  Forfeitures. — 
Ignorance  of  Statute  no  excuse.  • — Limitations  of  Actions. — Waiver  of  Statutes 
by  Consent. — Pleading  and  Proof  of  Statutes. — Repeal 52 

A  dditional  Notes. — Motives  of  Legislators  cannot  be  inquired  into,  54.  Journals  of  the  Legislature,  effect 
of. — Publication  of  Statutes. — Approval  by  Governor,  55,  56.  When  a  Statute  takes  effect,  67,  68. 
Waiver  of  Objection  to  the  Constitutionality  of  a  Statute,  88.  Repeal  in  cases  of  Re-enactment  or 
Amendment,  95,96.  Repeal  by  Implication,  Doctrine  discussed,  98-103.  Including. — Such  Repeal 
not  favored,  98.  The  Rule,  generalia  sfecialibus  non  derogant,  98,99.  When  the  last  Statute  or 
Section  prevails,  100.  Cumulative  Remedies,  100.  Instances  of  Implied  Repeal,  100, 101.  Instances 
of  no  such  Repeal,  102.  Extent  of  the  Repeal,  102.  Whether  the  Legislature  can  prescribe  a  Mode 
of  Repeal,  103.  Effectof  Repeal  and  of  Amendment,  108-111.  Revivalof  the  old  Law,  108.  Effecton 
Individual  Rights,  108.  Unconstitutional  Repealing  Statutes,  no.  Amendatory  Statutes,  no. 


X  CONTENTS. 

CHAPTEE    V. 

OF  THE   BOUNDARIES   OF   LEGISLATIVE   AND   JUDICIAL   POTVER. 

Division  of  Legislative  and  Judicial  Functions  in  England.  —Bills  of  Attainder. — 
Division  in  this  Country. — Disputed  Power  of  Judiciary,  independently  of  In- 
terpretation and  Constitutional  Limitation. — What  is  a  Law?— Power  of  the 
State  Legislatures  examined. — Retrospective  Laws. — Result  of  the  Examination. 
— Judicial  Power  of  construing  doubtful  Provisions  of  Written  Law. — History 
of  its  Exercise  in  England. — In  France.— Present  Condition  of  the  Law  on  the 
Subject. — Power  of  the  Judiciary  to  enforce  Constitutional  Restrictions. .  .  119 

Additional  Notes. — Submission  of  Laws  to  Popular  Vote,  135-137.  What  is  a  "  Law"  as  distinguished 
from  a  Judicial  Act,  so  as  to  be  within  the  Province  of  the  Legislature  ?  The  Doctrine  discussed, 
138-144,  including  Private  Statutes  in  relation  to  Persons  not  sui  juris,  Charities,  &c.,  140.  Cura- 
tive Statutes,  141.  Retrospective  Statutes,  general  Rule  of  Construction,  161.  The  Rule  applied 
to  several  particular  Classes  of  Statutes,  162, 163. 

CHAPTEE   VI. 

GENERAL   RULES  FOR  THE   CONSTRUCTION   OF   STATUTES. 

General  Rules  for  the  Construction  and  Interpretation  of  Statutes. — Necessity  for 
Construction  and  Interpretation  growing  out  of  the  Ambiguity  of  Language, 
and  other  Causes. — Various  Rules  given  by  Standard  Writers. — Vattel's  Rules. — 
Domat's  Rules. — Rutherford's  Rules. — Mackeldey's. — Leiber's.-  -Rules  of  our 
Law. —  Intention  of  the  Legislature  to  govern. — Mode  of  arriving  at  the 
Legislative  Intention. — Lord  Coke's  Rules. — Blackstone's  Rules.— Statutes  in  pari 
materia.  —  Contemporaneous  Exposition. — Legislative  Exposition. — Judicial  Con- 
struction.— Usage. — Language  used  in  Statutes. — Technical  Terms. — Liberal  and 
Strict  Construction,  190. 

Additional  Notes.— Intent  of  a  Statute,  how  ascertained,  certain  Rules  discussed.  199-201  ;  ditto,  203,204. 
Statutes  in  pari  materia^  Rule  as  to,  209,  210,212. — Certain  special  Rules  of  Interpretation  stated 
and  illustrated,  223-230,  including :  The  General  Principles. — Common  and  Technical  Terms. — 
Grammar  and  Punctuation.— General  Scope  of  the  Statute. — The  whole  Statute  to  be  harmonized. — 
Limiting  relative  and  subsequent  Clauses. — Consequences  of  a  particular  Interpretation  — Construc- 
tion ut  res  magis  valeat. —  Contemporaneous  Construction. —  Legislative  Construction. —  Stare 
decisis, — Presumption.— Implication. — Revisions. — Reterer.ee  Statutes.' 

CHAPTEE   VII. 

OF  STRICT  CONSTRUCTION,  AND  OF  LIBERAL  OR  EQUITABI/E  CON- 
STRUCTION. 

The  Line  separating  Judicial  Construction  from  Judicial  Legislation. — Strict  Con- 
struction, and  Liberal  or  Equitable  Construction.— Statutes  when  strictly  con- 
strued.— Statutes  conflicting  with  a  Constitution  or  Fundamental  Law. — Stat- 
utes prescribing  Forms  of  Procedure,  Modes  of  Proof  and  of  Practice. — Statutes 
of  Frauds. — Statutes  of  Wills. — -Statutes  of  Limitations. — Statutes  in  derogation 
of  the  Common  Law. — Penal  Statutes.— Revenue  Laws. — Usury  Laws. — Statutes 
granting  Franchises  and  Corporate  Powers. — Statutes  granting  Exemptions  from 
General  Burdens. — Statutes  authorizing  summary  Judicial  Proceedings. — Stat- 
utes authorizing  summary  Administrative  Proceedings. — Statutes  of  Explana- 
tion.— The  Stamp  Acts. — Statutes  giving  Costs. — Statutes  when  to  be  Liberally 
or  Equitably  Construed. — Remedial  Statutes. — Equity  of  a  Statute. — When 
Statutes  treated  as  Directory  merely. — General  Rules 250 

Additional  Not ei. — The  literal  Meaning  when  not  to  be  followed,  255  Statutes  in  derogation  of  the 
Common  Law,  Rule  in  relation  to,  discussed  and  applied  in  different  Classes  of  Cases,  267-271. 
Penal  Statutes,  279,  280.  Revenue  Statutes,  288.  Charters  and  Grants  to  Corporations,  291,292. 
Statutes  derogating  from  Common  Rights  and  Exemptions,  296,  297.  Remedial  Statutes,  308. 
Equity  ot  Statutes,  311.  Liberal  Construction.  312.  Directory  and  Mandatory  Provisions,  Rules 
lor  distinguishing  between  them,  and  numerous  instances  of  each,  316-318, 


CONTENTS.  XI 

CHAPTER    VIII. 

THE  CONSTRUCTION  AND   APPLICATION   OF    STATUTES  IN  PARTIC- 
ULAR CASES. 

Statutes  delegating  Public  Authority. —  Revenue  Laws. — Penal  Laws. —  Laws  as 
affecting  the  Rights  of  the  Government. — Effect  of  Statutes  on  Contracts  in 
Violation  of  them. — Cumulative  Remedies  and  Penalties. — Retroactive  Effect 
of  Laws — Waiver. — Rule  that  the  last  Statute  in  point  of  Time  prevails. — 
Computation  of  Time  in  Statutes. — Subject-matter. — General  Words. — Mis- 
description  and  Surplusage. — Remoteness  of  Effect. — Statutes  against  Wagers. — 
Corporations. — The  Interpretation  and  Proof  of  Foreign  Laws. — Revision  of 
Statutes. — State  Laws,  how  construed  in  the  Courts  of  the  United  States. — Inter- 
pretation of  Particular  Words. — Miscellaneous  Cases. — Grants  or  Patents. .  329 

Additional  Notes.— When  Statutory  Remedies  are  exclusive,  341.  Retrospective  Laws,  346,  347.  Mistake 
and  False  Description,  354,  355.  Computation  of  Time,  356.  Construction  of  General  Words,  em- 
bracing words  ejusdein  generis. — Implied  Exceptions  to  General  Language. — General  Language 
limited  by  the  Object  of  the  Act,  360, 361.  Revisions,  365.  Construction  of  State  Statutes  by  the 
U.  S.  Courts.  367,368.  Interpretation  ot  certain  Particular  Words  arranged  alphabetically,  371-373. 
"  May  "  and  "  Shall,"  Interpretation  of,  375,  376. 

CHAPTER   IX. 

OF  THE  INTERPRETATION  AND  APPLICATION  OF  TREATIES,  OF  PAT- 
ENTS OR  GRANTS  OF  LAND,  AND  OF  MUNICIPAL  ORDINANCES. 

Treaties. — Part  of  the  Supreme  Law  of  the  Union. — How  far  they  affect  State  Legis- 
lation.— How  far  they  may  have  a  Retrospective  Effect. — Patents  or  Grants  of 
Land. — Resumption  of,  in  early  Times. — Rules  of  Construction  applicable  to 
Municipal  Ordinances. — Centralization  and  Local  Sovereignty. — Instance  of  the 
foimer  in  Rome  and  France. — Development  and  Application  of  the  latter  in 
America, — Towns  and  Cities. — Delegation  of  Legislative  Sovereignty. — Mode  of 
the  Exercise  of  the  delegated  Authority. — Cases. — General  Authority  of  the  Courts. 
— Contracts  in  Violation  of  Ordinances  void. — Passage  of  Ordinances 384 

Additional  Notes. — Effect  and  Extent  of  Rights  acquired  by  Treaty,  387. 

CHAPTER   X. 

LIMITATIONS   IMPOSED   UPON   LEGISLATIVE   POWER   BY   THE    CON- 
STITUTIONS OF   THE   SEVERAL   STATES   OF   THE   UNION. 

The  general  Character  of  Constitutional  Provisions  regarded  as  Limitations  upon 
Legislative  Power. — Principal  Restrictions  imposed  by  the  State  Constitutions. 
— Guaranty  of  Private  Property. —  Trial  by  Jury. —  Protection  of  Law. — 
Searches  and  Seizures. —  Taxation. —  Police  Regulations. —  Titles  of  Bills. — 
Amendments. — Repeal — Constitutional  Majorities. — Religious  Tests. — Religious 
Societies. — Creation  of  Judges. — Incorporations. — Trust  Funds. —  Divorces. — 
Suits  against  the  State .' 404 

Additional  Notes. — Unconstitutional,  in  part,  413,414.  Implied  Restrictions  in  the  Constitution,  418. 
Taking  Private  Property  for  Public  Uses.— Eminent  Dem. ;in.— Provisions  of  the  State  Constitu- 
tions, 420-423.  Taxation,  425-432,  including  Definition  and  General  Principles,  425.  Local  Assess- 
ments, 426-429.  What  Objects  are  Public,  so  that  they  may  be  made  the  Occasions  of  Local  Taxa- 
tion, 429,  including  Municipal  Aid  to  Railroads,  420-431  ;  ditto  to  Educational  Institutions,  431  ;  ditto 
to  other  Private  Enterprises,  431.  Bounties  to  Volunteers,  432.  Other  Local  Matters,  432.  Police 
Powers. — General  Doctrine  discussed,  and  numerous  Illustrations  and  Examples,  435-437.  Taking 
Private  Property  for  Public  Uses. — Eminent  Domain. — A  full  Discussion  of  the  Doctrine,  embrac- 
ing the  following  separate  Notes :  What  can  be  taken,  443, 443.  The  question,  "  What  is  a  Public 
Use  ?  "  a  Judicial  one,  443,  444.  The  Necessity,  Expediency,  or  Propriety  of  the  Taking,  444-446. 
What  is  a  Public  Use  ?  numerous  Examples  of,  446-450.  Who  can  take  ?  452,  453.  What  consti- 
tutes a  Taking  of  Private  Property  for  Public  Use,  454-459,  embracing  Indirect  and  Consequen- 


CONTENTS. 

tial  Injuries,  455, 457.  Illustrations  of  ".Taking,"  457.  Imposing  additional  Easements,  458,  namely, 
Turnpikes  and^Plankroads,  458;  Steam  Railroads  in  Streets,  458.  Horse  Railroads  in  Streets,  458, 
459.  The  Compensation,  463-467,  including  the  General  Doctrine,  463-466.  Amount  of,  466.  Set-off 
of  Betterments  or  Benefits,  466,  467.  Extent  of  the  Taking,  whether  a  Fee  or  an  Easement,  472. 
The  "  Lam  of  the  Land"  or  "  Due  Process  of  Law." — Constitutional  Provisions,  474,  475.  Discus- 
sion of  the  Guaranty,  with  Illustrations  and  Examples,  475-478.  Trial  by  Jury.— Constitutional 
Provisions,  482-486.  A  full  Discussion  of  the  Constitutional  Guaranty,  486-495.  This  Note  in- 
cludes: General  Principles  as  to  Civil  Cases,  486,  487.  As  to  Criminal  Cases,  487.  488.  As  to  Equity 
Suits,  488.  As  to  Statutory  Proceedings,  489.  As  to  Special  Proceedings,  Private,  490  ;  ditto,  Pub- 


Uniform,  &c.(  with  Illustrations  of  various  Classes  of  Special  Taxes,  503-506.  Taxation  and  Repre- 
sentation, 506.  State  and  National  Taxation,  507,  508.  Certain  special  Constitutional  Provisions, 
509,  510.  Religious  Freedom^  512.  Titles  and  Subjects  of  Statutes. — Constitutional  Provisions, 
518.  A  full  Discussion  of  the  Rules  growing  out  of  these  Provisions,  519-530.  Amendment  of 
Statutes, — Constitutional  Provisions,  531.  Discusion  of  these  Provisions,  532.  Majority  of  Two- 
thirds,  533.  Uniform  Operation  of  General  Laws. — Discussion  of  the  Special  Provisions  in  many 
Constitutions,  534-536.  Various  Special  Provisions  in  State  Constitutions,  538-540. 

CHAPTER   XI. 

LIMITATIONS    IMPOSED   UPON   LEGISLATIVE    POWER  BY  THE    CON- 
STITUTION   OF   THE  UNITED   STATES. 

Clauses  of  the  Federal  Constitution  which  operate  as  Checks  on  Legislative  Action. 
— General  Nature  of  the  Legislative  Power  of  the  Union. — General  Principles  of 
Constitutional  Construction  or  Interpretation. — Interpretation  and  Application 
of  Particular  Clauses. — Habeas  Corpus. — Bills  of  Attainder. — Ex  post  facto  Laws. 
— Fugitives  from  Justice. — Fugitives  from  Labor. — Religious  Freedom. — Free- 
dom of  Speech  and  of  the  Press. — Search  Warrants  and  Seizures. — Only  One 
Trial  for  Offences. — Due  Process  of  Law. — Compensation  for  Private  Property 
taken  for  Public  Purposes. — Trial  by  Jury. — Excessive  Bail  and  Cruel  Punish- 
ments.— The  Obligation  of  Contracts. — Vested  Rights. — Conclusion 544 

A  dditional  Notes.— Construction  of  certain  Provisions  in  Arts.  V,  VI,  and  VII  of  the  Amendments,  547, 
548>  555-  Treaties,  effect  of,  556.  Ex  post  facto  Laws,  557-561.  Forfeitures  and  Confiscations,  557- 
559.  Renewal  of  Penalty,  559.  Increase  or  Change  of  Penalty,  559,  560.  Changes  in  Proceedure, 
Pleading.  <&c.,  560.  Civil  Remedies,  561.  Citizenship,  562-566.  Privileges  and  Immunities  of  Cit- 
izens under  Art.  IV,  sect.  2,  §  i,  562,  563  ;  ditto,  under  Amendments  XIV  and  XV,  Discussion  of 
these  Amendments,  563-566.  Only  One  Trial  for  the  same  Offence.— Provisions  of  the  State  Con- 


abjec 

vision  ?  581-589.  Marriage,  581.  Municipal  Corporations,  Charters  of,  and  Contracts  by,  582-584. 
Permission  to  Sue  the  State,  584.  Licenses,  584.  Public  Offices,  585.  Charters  of  Private  Cor- 
porations, 585.  Collateral  Stipulations  in  such  Charters,  especially  in  reference  to  Taxation  and  the 
Right  of  Eminent  Domain,  586-588.  What  is  included  in  the  Contract,  as  forming  a  part  of  it?  589. 
What  is  meant  by  the  "  Obligation  of  a  Contract  ?  "  603,  604.  What  State  Laws  impair  the  Obliga- 
tion of  Contracts,  605-622.  Laws  which  apply  directly  to  the  Terms  of  the  Contract,  606-609,  vlz-  •' 
Insolvent  Laws,  606  ;  Laws  affecting  Private  Corporations,  607  ;  Laws  affecting  the  Power  of  Tax- 
ation, 608  ;  and  of  Eminent  Domain,  609.  Laws  which  Operate  directly  upon  the  Remedy,  609-617, 
viz. :  What  is  the  Remedy  ?  600 ;  Stay  Laws,  610  ;  Exemption  Laws,  and  Homestead  Exemptions, 
612  ;  Arrest,  613  ;  Statutes  of  Limitation,  613  ;  Recording  Acts,  614  ;  Methods  of  Administering 
Justice,  Procedure,  Evidence,  &c..  614  ;  Scaling  Laws,  615  ;  Redemption  Laws,  615  ;  Appraisement 
Laws,6i6;  Miscellaneous,  616.  Changing  the  Remedy,  617.  Statutes  affecting  Municipal  Corpora- 
tions, 618,  Laws  incidentally  affecting  Contracts,  619.  Extent  of  the  Legislative  Power  when  the 
Right  to  alter, amend,  or  repeal  Charters,  &c.,  has  been  reserved,  620-622.  Vested  Rights.— Effect 
of  the  Provisions  protecting  applied  to  various  Classes  of  Statutes,  643-645. 


TABLE  OF  CASES  CITED. 


Abbott  v.  Doling.  269. 

v.  Lindenbower,  142,  478. 

v.  Yost,  330. 

Abercrombie  v.  Baxter,  615,  620. 
Abington  v.  Duxbury,  161,  162. 
Ablert  v.  Pritchard,  103. 
Abynst  v.  Louisville,  426. 
Adams  r.  Bancroft,  289. 

0.  Beale,  109. 

«.  Corriston,  494. 

0.  Hamelt,  69. 

0.  Hillyer,  56. 

v.  Howe,  515. 

v.  Palmer,  142. 

v.  Saratoga,  &c.  R.  R.  296. 

0.  Wood,  43. 

Adamson  v.  Davis,  613. 
Addison  0.  Saulnier,  436,  503. 
Agar  v.  Regent's  Canal  Co.  397. 
Agent  of  State  Prison  v.  Lathrop,  330. 
Agew  0.  Platt,  622. 

Aiken  v.  Western  R.  R.  227. 

Ala.  &c.  Ins.  Co.  v.  Boykin,  144. 

Ala.  &c.  R.  R.  v.  Burkett,  467,  472,  607. 

In  re,  371. 

Albany  &c.  R.  R.  v.  Brownell,  459,  619. 
Albany  &  North.  R.  R.  v.  Lansing,  460. 
Albany  St.  Matter  of,  445,  450,  472. 
Alcorn  v.  Earner,  135,  136,  426. 
Alderman  Blackwell's  Case,  376. 
Aldridge  0.  Mardoff,  200. 
Alexander  v.  HcKenzie,  585. 

v.  Milwaukee,  456. 

v.  State,  365,  378. 

Alexander's,  Mrs.,  Cotton,  559. 
Allbyer  0.  State,  103,  535. 
Allen  0.  Archer,  143. 

v.  Armstrong,  143. 

v.  Colby,  500. 

v.  Drew,  427. 

v.  Joy,  425,  431. 

v.  Miller,  277. 

v.  Staples,  500. 

v.  Watson,  13. 

Allen  Co.  v.  Silvers,  414. 
Allison  v.  Smith,  371. 

Almy  v.  Harris,  30,  75,  77,  344. 
American  Fur  Co.  v.  U.  S.  282. 


American  Home  Miss.  Soc.  v.  Wadhams, 

185. 

Ames  v.  Port  Huron,  &c.  Co.  477. 
Amey  v.  Mayor,  430. 
Amsbry  v.  Hinds,  161. 
Amy  Warwick,  the,  559. 
Anderson  0.  Baker,  558,  559. 

v.  Commonwealth,  532. 

0.  Fisk,  645. 

v.  Kerns  Drain  Co.  447. 

v.  Turbiville.  464. 

Andover,  &c.  Turnp.  Co.  v.  Gould,  343. 
Andrews,  Ex  parte,  512,  535. 

v.  Montgomery,  562. 

v.  N.  Y.  Bible,  &c.  Soc.  14. 

0.  Saucier,  414. 

v.  Wheeton,  359. 

0.  Worcester,  &c.  Ins.  Co.  614.. 

Ann,  the,  67. 

Anonymous,  3,  111. 
Antoni  0.  Wright,  607. 
Apple  0.  Apple,  224. 
Annington  0.  Barnet,  408,  442. 
Armstrong  v.  Berreman,  532. 

0.  Garrow,  88. 

0.  Jackson,  494. 

0.  State,  493. 

v.  Toler,  69. 

0.  Treasurer,  &c.  631. 

0.  U.  S.  74. 

Arnold  v.  Hudson  Riv.  R.  R.  45«. 

0.  Tallmadge,  93. 

0.  U.  S.  357. 

Arrowsmith  c.  Burlington,  480. 

Ashburnham  v.  ,  164. 

Ashley  v.  Patterson.  500. 
Ashuelot  R.  R.  0.  Elliott,  616. 
AspenwallV  Commissioners,  588. 
Atcheson  0.  Everitt,  309. 

0.  Bartholomew,  535. 

Atkins  0.  Kinnan,  300. 

0.  btate,  573. 

Atkinson  0.  Duffy,  530. 

0.  Dunlap,  139. 

0.  Fell,  258. 

0.  Marietta,  &c.  R.  R.  539. 

Att'y  Gen.  0.  Aspenwall,  397. 

0.  Bank  of  Charlotte,  586. 


XIV 


TABLE    OF   CASES    CITED. 


Att'y-Geu.  0.  Bay  State,  &c.  Co.  510. 

v.  Brown,  102. 

v.  Chelsea  Water  Co.  49,  107. 

v.  Clergy  Soc.  61-9. 

v.  Earl  of  Powis,  45,  220,  371. 

v.  Lock,  378. 

v.  Mayor  of  Dublin,  397. 

v.  Newman,  107. 

v.  New  York,  403. 

v.  Panter,  65. 

v.  Poole,  397. 

v.  Pougett,  69. 

v.  Squires,  585. 

0.  Winnebago,  &c.  PI.  R.  Co. 

504. 

Atwater  v.  Woodbridge,  511. 
.Aubert  v.  Maze,  69. 
Augusta  v.  Bank  of  Augusta,  429,  617. 
Aulanier  v.  Governor,  508. 
Auld  v.  Butcher,  610,  613. 
Aurora  v.  West,  429. 
Aurora  &c.  Co.  v.  Holthouse,  161,  607. 
Austin  c.  Stevens,  169,  652. 

v.  Univ.  of  Penn.  407. 

Avery  v.  Fox,  455. 

v.  Pixley,  358. 

Aycock  v.  Martin,  611. 
.Ayres  v.  Meth.  Epis.  Ch.  14. 

Babbitt  v.  Doe,  300. 
Babcock  v.  Lamb,  331. 

0.  Middleton,  583,  618. 

Backus  0.  Lebanon,  442,  454,  490,  586, 

639. 

Bacon  v.  Bacon,  29. 
Bagnell  v.  Broderick.  390. 
Bailey  v.  Bryan,  269. 

0.  Mason,  108. 

0.  Mayor,  &c.  168. 

v.  Miltenberger,  443,  448. 

0.  Mogg,  118. 

v.  Power  St.  Ch.  622. 

0.  Rolfe,  216. 

Baker  v.  Baker,  271. 

0.  Boston,  396. 

0.  Braman,  88. 

0.  Cincinnati,  503. 

v.  Johnson.  468. 

0.  Kelly,  477,  478. 

0.  Milwaukee,  102. 

0.  State,  574. 

Balch  «.  N.  Y.  &c.  R.  R.  372. 
Baldro  0.  Tolmil,  109. 
Baldwin  0.  Cooley,  269. 

0.  Hale,  606. 

0.  N.  Y.  494,  5SO. 

Ball  v.  Wyeth,  613. 

Baltimore  v.  Bd.  of  Police.  582. 

v.  State,  412,  507. 

Baltimore  &c.  R.  R.  0.  Nesbit.  605,  632 

0.  Union  R.  R.  443 
0.  Wilson,  229. 


Bancroft  v.  Dumas,  69. 

Bane  0.  Wick,  227. 

Ban  field  0.  Solomons,  290. 

Baugor  &c.  R.  R.  0.  Smith,  608. 

Bank  v.  New  Albany,  588. 

0.  Supervisors,  507. 

Bank  of  Alabama  0.  Dalton,  635. 

Bank  of  Augusta  ».  Earle,  57,  60,  61,  63. 

Bank  of  Cheuango  0.  Brown,  135,  137. 

Bank  of  Columbia  0.  O'Keley,  623. 

Bank  of  Commerce  0.  N.  Y.  507. 

Bank  of  Dansville,  Matter  of,  381. 

Bank  of  Easton  0.  Common'th,  294. 

Bank  of  Hamilton  0.  Dudley's  Lessee,  554, 
578. 

Bank  of  Monroe  v.  Widner,  74. 

Bank  of  Old  Dominion  0.  McVeigh,  619. 

Bank  of  Penn.  0.  Common'th,  203. 

Bank  of  Republic  v.  Hamilton  Co.    297, 
539,  609. 

Bank  of  Rome  0.  Rome,  135,  428,  429. 

Bank  for  Savings  v.  Collector,  209. 

Bank  of  U.  S.  ».  Daniel,  60. 

0.  Deveaux,  549.       /-• — 
0.  Halstead,  550,  552. 

Bank  of  Utica  0.  Mersereau,  217. 
0.  Smedes,  25. 

Bankhead  0.  Brown,  444,  445,  448. 

Banks,  Ex  parte,  375.          ^ 

0.  Darden.  269. 

v.  Mayor,  507. 

Bank  Tax  Case,  507. 
Banne's  Case,  389. 

Bansemer  0.  Mace,  375. 

Baptist  &c.  Union  0.  Peck,  644. 

Barber  0.  Andover,  639. 

—    0.  Dennis,  259. 
Barbour  0.  Barbour,  581. 
Barclay  0.  Brown,  278. 
Bardon  0.  Crocker,  30,  342. 
Bargis  0.  State,  300. 
Barker  0.  Dayton,  644. 
, 0.  People,  555,  580. 

0.  Pittsburgh,  600. 

v.  State,  373. 

Barkhamstead  0.  Parsons,  65. 
B       lay  0.-  Glover,  611. 
Barksdale  0.  Morgan,  358. 
Barlow  0.  Gregory,  589. 
Barnard  0.  Houghton,  316. 
Barnes  0.  Atchenson,  427. 

0.  Barnes,  611. 

0.  Bell,  200. 

0.  First  Parish,  515. 

Barrett  0.  State,  574. 

0.  Stockton  &c.  R.  R.  293. 

Barrington's  Case,  27,  650. 

Barren  0.  Mayor  of  Baltimore,  555,  577,^ 

580. 

Barry  0.  Iseman,  612. 
Bartemeyer  0.  Iowa,  565. 
Bartholomew  0.  Harwinton,  432. 


TABLE   OF  CASES   CITED. 


XV 


Bartlett  v.  Achey,  280. 

v.  King,  105,  3G6. 

v.  Morris,  325. 

0.  Viner,  71,  339. 

Bar  to  •».  Himrod,  137. 

Barton  «.  Port  Jackson  &c.  R.  R.  69,  88. 
Bartruff  ®.  Reney.  161. 
Barwell  ».  Brooks,  215. 
Baskett  v.  Cunningham,  117. 

?'.  Univ.  of  Cambridge,  117. 

Bass  v.  Fontleroy,  25. 
Bates  v.  Kimbari,  143,  146. 

v.  Voorhees,  186. 

Battle  v.  Howard,  526,  530. 
Baugher  v.  Nelson,  659,  660. 
Baumgardner  r.  Circuit  Ct.  631. 
Baxter  v.  Taber,  654. 

Bay  v.  Gage,  162. 

Bayard  v.  Klinge,  255,  533. 

®.  Smith,  334. 

Bay  City  v.  State  Treasr.  430. 

Bay  City  &c.  R.  R.  «.  Austin,  280. 

Beach  v.  Walker,  642. 

Beals  v.  Amador  Co.  506. 

Bean  v.  Briggs,  13. 

I5eaty  v.  Lessee  of  Knowler,  294. 

v.  Perkins,  500. 

Beaumont  v.  Mountain,  94. 
Beckford  r.  Hood,  342. 
Bedard  v.  Hall,  427. 
Bedford  v.  Shilling,  114,  662. 
Beebe  v.  O'Brien,  109. 

v.  State,  407,  408,  411. 

Beekman  v.  Bigharn,  306. 

v.  Saratoga  &c.  R.  R.  451.  453, 

470,  490. 
Beers  v.  Beers,  491,  496,  497. 

v.  Haughton,  550. 

Bein  v.  Heath,  578. 
Bell®.  Clapp,  500,  571. 

—  v.  Morrison,  369. 

—  v.  Quinn,  70,  402. 
Bellinger  «.  N.  Y.  Cent.  R.  R.  457. 
Bellingsley  •».  State,  209. 
Bellows  v.  Weeks,  143. 

Beman  v.  Tugnot.  70.  402. 
Benden  v.  Nashua,  467. 
Bender  v.  Crawford,  613. 
Benedict  v.  Goit,  458. 
Beneke  v.  State,  136. 
Benjamin  v.  Benjamin,  272. 
Bennett's  Branch  Co.'s  Appeal.  459. 
Bennett  v.  Am.  Art.  Union,  78,  79. 

«.  Bennett,  644. 

v.  Boggs,  157. 

v.  Fisher,  143. 

v.  Holman,  267. 

».  McWhorter,  228. 


Bensby  v.  Ellis,  163. 
Benson  v.   Mayor    of 

429. 
Beridon  v.  Barbin,  99. 


Berley  v.  Rampacher,  161. 
Berry  ».  Ransdall,  613. 
Berthold  v.  Fox,  616. 

v.  Holman,  616. 
Bethel  v.  Demarest,  606. 
Betts  r.  Bagley,  622,  623. 
Bibb  Co.  L.  Ass.  v.  Richards,  539. 
Biddes  ».  James,  94,  95. 
Bid  well  v.  Whitaker,  208. 
Bigelow  v.  Forest,  559. 

«.  Johnson,  335. 

i\  Prit chard,  626,  661. 

v.  Stearns,  300. 

e.  West  Wis.  R.  R.  267,  466. 

«.  Wilson,  357. 

Biggs  ».  Lawrence,  339. 
Billings  v.  Hall,  613,  645. 

v.  Harvey,  365. 

Billingslea  v.  Baldwin,  210. 
Billmeyer  v.  Evans,  611,  614. 
Bingham  v.  Supervisors,  227. 
Binghampton  Bridge  Case,  588. 
Bird,  Exparte,,  512. 

Bishop  ».  Marks,  427. 

v.  Schneider,  229. 

Bishop  of  Peterboro'  v.  Catesby,  358. 

Bishops,  Case  of  the,  116. 

Black's  Case,  562. 

Black  ».  Delaware  &c.  Canal,  292,  367. 

u.  State,  574,  575. 

Blackman  v.  Wheaton,  267. 
Blackwood  t>.  Vanvleet,  616. 
Blain  v.  Bailey,  99. 
Blair  i\  Forehand,  436. 

v.  Milwaukee  <fec.  R.  R.  607. 

v.  Ridge  ley,  558. 


Blake  ®.  Bradkett,  96,  354. 
v.  Portsmouth  &c.  R.  R.  376. 

t.  Rich,  472. 

v.  Sherman,  316. 

.Blakemore  v.  Glamorganshire  &c.  Co.  293. 
Blanchard  v.  Russell,  57,  60. 
Blanding  v.  Burr,  506,  582. 
Blaun  0.  State,  617. 
Blauvelt  0.  Wood-worth,  644. 
Bleecker  ®.  Ballon,  261. 

0.  Wiseburn,  277,  278. 
Bliss  v.  Hosmer,  442. 

v.  Krauss,  138,  427. 

r.  Lilley,  371. 


Blood  v.  Humphrey,  441. 

v.  Mercclliott,  522. 

Bloodgood  0.  Gracey,  367. 

v.  Mohawk,  &c.  R.R.  159,451, 

453,  468. 
Bloom  v.  Burdick,  300. 

v.  Richards,  14,  69. 


Bloomfield  &c.   Gas  Co.  v.   Richardson, 

446. 

N.   Y.   129,    296,  i  Blunt's  Lessee  v.  Smith,  390. 
I  Blythe  0.  State,  510. 
1  Board  of  Comm'rs  v.  Cutler,  212. 


xvi 


TABLE   OF  CASES  CITED. 


Board  of  Comm's  v.  Potts,  102. 
Board  of  Education  v.  Fowler,  583. 
Board  of  Int.  Imp.  v.  Scearce,  608. 
Board  of  Pub.  Works  v.  Columbia  Coll. 

562. 

Board  of  Supervisors  v.  Campbell,  504. 
Boardman  v.  Lessees  of  Reed,  390. 
Bock  v.  Lanman,  364. 
Bodley  t>.  Taylor,  390. 
Bogardus  ».  Trinity  Ch.  7,  388. 
Bonaparte  v.  Camden  &  A.  R.  R.  159. 
Bond  ».  Bond,  498. 
10.  Hiestand,  476. 

10.  Kenosha,  426. 

v.  Munro,  161. 

v.  State,  495. 

Bonham's  Case,  125. 
Boom  v.  Utica,  399. 
Boon  v.  Bowers,  228. 
Boonville  ».  Ormrod,  228. 

v.  Trigg,  532. 

Booth  v.  Booth,  641. 

v.  Woodbury,  432. 

Borden  v.  Fitch,  562. 

Boring  v.  Williams,  496. 

Borough  of  Dunmore's  Appeal,  582. 

Boseley  ».  Mattingly,  195,  226. 

Bostick  0.  North  Staffordshire  R,  R.  293. 

Boston  ®.  Shaw,  402,  510. 

Boston  &c.  Co.  ».  Condit,  346. 

«.  Newman,  447. 
Boston,  &c.  R.  R.  t>.  Cilley,  163. 

v.  Greenbush,  459,621. 

v.   Old  Colony  R.  R. 

455.  456,  466. 
v.  State,.  608. 
Boston  &  Lowell  R.  R,  v.  Salem  &c.  R.  R. 

442,  596. 
Boston  Water  &c.  Co.  v,  Boston  &c.  R.  R. 

443,  639. 
Boswell's  Case,  650. 

Bosworth  ».  Budgen,  402. 
Bouldin  v.  Massie's  Heirs,  390. 
Bounifield  v.  Bidwell,  430. 
Boutwell  v.  Foster,  69. 
Bowen  v.  Argall,  315. 

v.  Lease,  106. 

Bowers  c.  Sonoma  Co.  317.  - 
Bowles  v.  State,  493. 
Bowman  v.  Cockrill,  530. 

v.  Middleton,  159,  406. 

Boyce  v.  Sinclair,  143. 
Boydfl.  Barrenger,  168,  653. 

v.  Elles,  476. 

v.  State,  585. 

Boyer  v.  Jones,  508. 
Boyers  v.  Crane.  52. 
Bovle,  In  re,  540. 
Boyle  ».  Arlidge,  367. 

v.  Zacharie,  613. 

Boy  lea  ».  Murphy,  ,371. 
Brackett  v.  Hoyt,  335. 


Bradbury  v.  Wagenhorst,  226. 
Braddee  v.  Brownfield,  159. 
Bradford  v.  Brooks,  145. 
Bradley  ».  Baxter,  542. 
v.  Buffalo  &c.  R.  R.  608. 

v.  McAtee,  587,  588. 

v.  N.  Y.  &  N.  H.  R.  R.  294,  454. 

v.  People,  507. 

Bradshaw  «.  Omaha,  54. 
Bradstreet  v.  Clarke,  116. 
Bradwell  v.  Illinois,  565. 
Brainard  v.  Colchester,  587. 
Brandling  v.  Barrington,  204. 
Brandon  v.  State,  520,  522,  527. 
Branham  ».  Lange,  527,  532. 
Branin  v.  C.  &.  P.  Riv.  R.  R.  617. 
Brason  v.  Dean,  601. 
Braynard  v.  Marshall,  622. 
Bree  v.  Holbeck,  277. 
Breitenbach  «.  Bush,  611. 
Brenham  v.  Story,  141. 
Brett  v.  Beale,  94. 
Brewer  r.  Otoe  Co.  618. 
Brewster  v.  Hough,  501,  511,  599. 
0.  Kitchen,  601. 

v.  Syracuse,  506,  520,  529,  582. 

Bridge  Co.  v.  Hoboken  Co.  291,  371. 
Bridgeford  v.  Hael,  521. 

Briggs  v.  Easterly,  255. 

®.  Georgia,  324. 

Bright  10.  McCullough.  525. 
Brightman  v.  Kirner,  103. 
Brighton  *.  Wilkenson,  620. 
Brimmer  v.  Boston,  619. 
Brinkley  v.  Swicegood,  108. 
Brinton  v.  Seevers,  142. 
Brisbin  «.  Farmer,  47. 
Briscoe  v.  Anketell,  634. 

v.  B'k  of  Common'th  of  Ky.  549. 

Bristol  v.  Newchester,  419. 
Bristow  v.  Sequeville,  364. 
Brittain  v.  Kinnaird,  82. 
Britton  v.  Moody,  415. 
Broadbent  v.  State,  298. 
Brodhead  v.  Milwaukee,  432. 
Brodnax  v.  Groom,  56. 
Bronson  v.  Kinzie,  613,  629,  632,  634. 
«.  Newberry,  626. 

v.  Wiman,  94. 

Brook  v.  Milliken,  336. 

Brooklyn  &c.  R.  R.  v.  Brooklyn  &c.  R.  R. 
458,  583. 

v.  Coney  Island  R.  R. 

458. 

Brooklyn  Park   Comm'rs  v.  Armstrong, 

589. 
Brooks  v.  Daniel,  498. 

v.  Hyde,  535. 

v.  Mclntyre,  476. 

v.  Mobile  School  Comm'rs,  200. 

Broome  v.  Wellington,  358. 
Brown  v.  Beatty,  414,  464,  467. 


TABLE   OF   CASES   CITED. 


XV11 


Brown  0.  Buzan,  31. 

v.  County     Commis'rs,'    98,    105, 

106. 

v.  Duncan,  69,  71,  339. 

r.  Fitield,  268. 

v.  Heummel,  480. 

0.  Hunn,  371. 

v.  Kelly,  500. 

0.  McMillan,  104. 

v.  Penobscot  Bk.  632. 

v.  Somerville,  256. 

0.  State,  495,  535. 

0.  U.  S.  457. 

Bruce  v.  Del.  &  11.  Canal  Co.  83. 
Brudenell  0.  Vaux,  358. 
Bruffett  0.  Gr.  West.  R.  R.  607. 
Brush  0.  Ware,  390. 
Bryan  v.  Slate,  491. 
Bryson  v.  Campbell,  601. 
Buchanan  0.  Smith,  270. 
Buckingham  0.  Billings,  298. 

0.  Steubenville   &c.    R.    R. 

102. 

Buckley  v.  Lowry,  301. 
Buckner  r.  Finley,  60. 
Buell  0.  Lockport,  87. 
Buffalo  &c.  R.  R.  0.  Buffalo,  533. 

0.  Uoinmon'th,  609. 
Buffalo  Bayou  &c.  R,  R,  0.  Ferris,  4fi3  to 

467,  490. 

Buffalo  City  Cemetery  v.  Buffalo,  297. 
Bulk  ley  0.  Eckert.  Sol. 

— "  v.  N.  Y.  &  N.  H.  R.  R.  608. 
Bull  v.  Conroe,  426,  644. 

—  -p.  Read,  135,137. 
Bullock  0.  Geomble,  492. 
Bum  pus  P.  Miller,  459. 
Bunn  v.  Gorgas,  611. 
Burch  0.  Newbury,  139,  255. 
Burchfield  0.  North.  Cent.  R.  R.  372. 
Burden  0.  Steen,  446. 
Bureau  Co.  v.  Chicago  &c.  R.  R.  505. 
Burford,  ex  parte,  572. 
Burgett  ».  Burgett,  40. 
Burghardt  e.  Turner,  653. 
Burhop  0.  Milwaukee,  534. 
Burke  0.  Barron,  643. 

0.  Jeffries,  99. 

Burn  0.  Carvalho,  66. 
Burnam  ».  Common'th,  476. 
Burnett  0.  Sacramento,  426. 
Burnham  0.  Acton,  529. 

0.  Steven?,  229. 

0.  Webster,  26. 

Burns  0.  Atchinson,  429. 

0.  La  Grange,  492. 

Burnside  P.  Whitney,  269. 
Burr  0.  Ross,  55. 
Burroughs  0.  Payton,  645. 
Burrows  s.  Bashford,  270. 

Burt  0.  Merchants'  Ins.  Co.  448,  453. 


B 


Burt  0.  Williams,  611. 
Burton's  Appeal,  619. 
Burwell  0.  Tulles,  162,  212. 
Bushnell  0.  Beloit,  431. 
Bussey  0.  Story,  212. 
Butler  0.  Dunham,  430. 

0.  Kent,  77. 

0.  Palmer,  111,  112,  113,  114,  115, 

156,  616. 

0.  Pennsylvania,  585,  600. 

0.  Putney,  432. 

0.  Toledo,  346,  561. 

Butz0.  Muscatine,  367,  610,  618. 
Byers  0.  Commonwealth,  491. 

Cady  0.  Watertown,  373. 
Cahoon  0.  Commonwealth,  103. 
Cain  0.  State,  209. 
Calcraft  0.  Gibbs,  80. 
Calder  0.  Bull,  131,   146,  159,  165,  170, 
555,  561,  605. 

0.  Kurby,  584. 

Calderwood  v.  Estate  of  Calderwood,  373. 
Caldwell  v.  Albany,  278. 

0.  Justices,  429. 

Calhoun  0.  Calhoun,  619. 

0.  McLendon,  139. 

California  Tel.  Co.  0.  AltaTel.  Co.  588. 
Calkins  0.  State,  371. 
Call0.  Chadbourne,  135,  136. 

—  0.  Hagger,  635. 

—  0.  Wilbridge,  374. 
Calleuder  0.  Marsh,  462. 
Calvert  0.  Williams,  139. 
Camden  v.  Allen,  341. 

v.  Anderson,  107,  338. 

Cameron  v.  Baker,  344. 
Campan  0.  Detroit,  110,  414. 

0.  Fairbanks,  300. 

Campbell  0.  Evans,  t35. 

v.  Perkins,  315. 

Canal  Appraisers  0.  People,  7,  462. 
Canal  Comm'rs  0.  People,  7. 
Canal  Co.  0.  Dauphin  Co.  296,  372. 

v.  R.  R.  Co.  106,  256. 

Canandaigua  &c.  R.  R.  0.  Payne,  460. 
Canastota  &c.  R.  R.  v.  Parkhill,  101. 
Cancemi  0.  People,  494. 
Cannan  0.  Bryce,  69. 
Cannon  0.  Henaphill,  530. 

9.  Vaughan,  197,  211. 

Cantwell  0.  Owens,  200. 

Cargill  0.  Power,  616. 

Carleton  i\  Goodwin's  Ex'or,  139. 

v.  t<3ople,  414. 

Carlton  0.  Carlton,  540. 
Carpenter  0.  Commonwealth,  561. 

».  Landaff,  466. 

0.  Oswego  &c.  R.  R.  458. 

0.  Prov.  W.  Ins.  Co.  551. 

0.  Snelling,  507. 


XT111 


TABLE   OF   CASES   CITED. 


Carson  v.  Carson,  581. 

v.  Central  R.  R.  459. 

v.  Coleman,  467. 

v.  Commonwealth,  495. 

Carter  v.  Burt,  101,  560. 
Caruthers  v.  Andrews,  535. 
Case  v.  Wildridge,  195. 
Casey  v.  Harned,  98,  102. 
Cass'Township  ®.  Dillon,  416,  432. 
Cassitv  v.  Storms,  613. 

Castle" v.  Burditt,  356. 

Caswell  v.  Allen,  80. 

Cate  v.  State,  98. 

Gates  v.  Knight,  267. 

Cathcart  v.  Robinson,  7. 

Catlin  v.  Gunter,  186. 

Central  Bank    v.  Empire  Stone  &c.  Co. 

109. 

Central  Bridge  Co.  v.  Lowell,  443. 
Central  Park,  Matter  of,  445,  447,  453. 
Central  Plank-Road  v.  Hannaman,  530. 
Central  &c.  R.  R.  r.  Holler,  463. 
Chadwick  ».  Moore,  626. 
Chagrin  Falls  &c.  PI.  R.  v.  Cane,  458. 
Chalker  v.  Ives,  163. 
Chalmers  v.  Bell,  338. 
Chamberlain  v.  Western  Trans.  Co.  270. 
Chambers  v.  Satterlee,  427. 

v.  State,  355,  532. 

Champlain    &c.  R.  R.  v.  Valentine,  85, 

391. 

Chance  v.  Adams,  39. 
Chandler  ».  Main,  57. 

v.  Northrup,  310,  644. 

Chancy  v.  State,  163. 
Chapin  r.  Crusen,  607. 

v.  Persse,  270. 

«.  Sullivan  R.  R.  472. 

Chapman  v.  Albany  &c.  R.  R.  459. 
Chappee  v.  Thomas,  437. 
Charity  Hospital  v.  De  Bar,  436. 
Charles  v.  Lamberson,  67,  312. 

v.  People,  92. 

Charles  River  Bridge  v.  Warren  Bridge, 
292,  293,  294,  337,  389,  595,  605,  632. 

Charleston  v.  Benjamin,  14. 

Chase  v.  Sutton  Manuf.  Co.  473. 

Chealey  v.  Brewer,  261. 

Cheany  v.  Hooser,  647. 

Cheever  ».  Wilson,  562. 

Cherokee  Tobacco,  Matter  of,  556. 

Chesapeake  &c.  Canal  Co.  v.  Baltimore 
&c.  R.  R.  443. 

Chester  Glass  Co.  v.  Dewey,  73,  343. 

Cheval  v.  Nichols,  276. 

Chicago  v.  Baer,  427. 

v.  Lamed,  427,  429. 

».  Sheldon,  618. 

Chicago  &c.  R.  R.  v.  Adler,  560. 

v.  Boone  Co.  505. 
0.  Sandford,  464. 
v.  Wilson,  445,  447. 


Childsr.  Shower,  HO,  645. 

v.  Smith,  31. 

Chiles  v.  Drake,  527,  575. 

v.  Munroe,  526. 

Christ  Church  v.  Philadelphia,  586,  587_ 

Christmas  v.  Russell,  562. 

Christopher  v.  Mayor  &c.  538. 

Christy  v.  Board  &c.  585. 

Church  v.  Stadler,  103. 

Churchill  t.  Crease,  48,  113,  361. 

v.  Merchants'  B'k.  358. 

Cincinnati  Mut.  H.  A.  Co.  v.  Roseuthal, 

562. 

Citizens'  B'k  v.  Wright,  102. 
City  v.  Empire  P.  R,  Co.  411. 

v.  Lamson,  618. 

City  of  Boston  v.  Shaw,  76,  343,  402. 
City  of  Charleston  v.  Benjamin,  69. 
City  of  London  v.  Wood,  119. 
City  of  Lowell  v.  Hadley,  321,  399. 
City  of  New  Orleans  v.  St.  Rowes,  323. 
City  of  New  York  v.  Miln,  413. 
Clapp  o.  Cedar  Co.  430. 
Clark,  Matter  of,  569. 

v.  Brown,  74,  75. 

v.  Clark,  602. 

v.  Cordis,  476. 

v.  Davenport,  99. 

v.  Dick,  645. 

v.  Ellis,  413,  415. 

v.  Hatch,  623. 

V.  Hayes,  140. 

v.  Janesville,  371,  431,  529,  540. 

T.  Martin,  610,  611. 

i\  People,  409. 

v.  Rochester,  135,  136,  429. 

v.  Saybrook,  461. 

v.  Syracuse,  396,  397. 

v.  Ticknor,  619. 

v.  Utica,  221,  470. 

Clark's  Adm'rs  v.  Han.  &  St.  Jo.  R.   R. 

608. 

Clary  v.  Hoagland,  228. 
Clayton  ».  Adams,  215. 

v.  Chicago,  505. 

v.  Drake,  372. 

Clemens  v.  Conrad,  507. 
Cleveland  v.  State  Bank,  360. 

v.  State  Bank  of  Ohio,  373. 

».  Wick,  467. 

Cleveland  &c.  R.  R.  v.  Erie,  291,  539. 
Cleveland  &c.  Co.  v.  Fire  Comm'rs,  288.. 
Clinton  v.  Cedar  Rapids  R.  R.  459,  536. 

v.  Draper,  523. 

Clippinger  v.  Hepbaugh,  53. 
Clugas  v.  Penaluna,  339. 
Coates  v.  Mayor,  600. 
Coatsworth  «?.  Barr,  371. 
Cobia  i.  State,  495. 
Cochran  t>.  Surlay,  605. 

v.  Taylor,  200. 

r.  Van  Surlay,  157- 


TABLE    OF   CASES  CITED. 


XIX 


Coe  v.  Shultz,  138,  436. 
Coffin  v.  Coffin,  490. 

v.  Kiel,  209,  226,  347,  585,  616,  617. 

v.  Tracy,  87. 

Coffman  v.  Bank  of  Ky.  611. 
Cohens  0.  Virginia,  367,  553. 

v.  Wright,  478,  557,  612, 

Colbrane  ».  Barnes,  255. 

Colclough  0.  Nashville  &c.  R.  R,  464. 

Golden  v.  Eldred,  75,  76. 

Cole  v.  Green,  320.          '   . 

v.  Smithy  335. 

v.  Supervisors,  99. 

Collector  0.  Day.  508. 

v.  Hubbard,  644. 

College  of  Physicians  v.  Harrison,  115. 
Collins  v.  Blantern,  273. 

v.  Collins,  371. 

•' 0.  Ragrew,  335. 

Colt  v.  Eves,  323,  496,  555. 
Columbia  &c.  Co.  v.  Haywood,  357. 

0.  Muir,  427. 

Columbus  &c.  R.  R.  v.  Simpson,  467.      ' 
Colwell  v.  Mayo  Landing  &c.  Co.  267. 
Comer  v.  Folson,  432. 
Commercial  B'k  of  Buffalo  v.  Sparrow,  55, 

533. 

Commercial  B'k  of  Oswego  v.  Ives,  357. 
Commissioners  v.  Bowie,  465. 

0.  Holyoke  &c.  Co.   620, 

621. 

v.  Nichols,  430. 
v.  Withers,  455. 
Commissioners  of  Knox  Co.  v.  McComb, 

99. 

Commissioners  of  Leaveuworth     Co.     v. 

.Miller,  429. 

Commissioners  of  Shawnee  Co.  v.  Carter, 

143. 
Commonwealth  v.  Alderman,  573. 

v.  Alger,  12,  434,438,440. 

0.  Aves,  62. 

v.  Bacon,  600. 

v.  Baird,  512. 
0.  Baldwin,  337. 
v.  Barker,  642. 
,  0.  Bassford,  57,  60. 
v.  Borden,  56. 
0.  Boyle,  573. 
v.  Breed,  441.    • 
r.  Brennan,  584. 
v.  Bubser,  575. 
0.  Byrne,  477. 
v.  Cancannon,  31. 
0.  Gary,  543. 
0.  Chambre,  358. 
0.  Churchill,  116. 
0.  Cochituate  Bank,  614. 
v.  Cotnm'rs  of  Alleghany, 

102. 

0.  Conyngham,  226. 
0.  Cook,  573. 


Commonwealth 


Cooley,  105,  111. 
Council  of   Montrose, 

200. 

Daitey,  495. 
Dana,  498,  500. 
Drewry,  530. 
Duane,  111,  336. 
Eastern  R.  R.  620. 
Easton  Bank,  106. 
Edwards,  47. 
Erie  &c.  R.  R.  458,  563. 
Essex  Co.  620,  621. 
Farm.    &   Mech.   B'k, 

657. 

Fayette  &c.  R.  R.  622. 
Fells,  574. 

Gardner,  101,  547,  560. 
Garrigues,  337,  341. 
Geltiuam,  279. 
Gillespie,  65. 
Green,  520,  573. 
Greener,  547. 
Griffin,  209. 
Hall,  561. 
Harvey,  64. 
Herrick,  107. 
Hitchings,  413. 
Howe,  436. 
Hudson,  575. 
Jackson,  56. 
Judges,  The,  136. 
Keefe,  575. 
Kelliher,  101. 
Keuiston,  357,  379. 
Kimball,  105,  263,  415. 
Kneeland,  14. 
Knowlton,  7,  9. 
Lahy,  575. 
Leach,  9. 
Long,  547. 
Loring.  284. 
McDonough,  110. 
McMurdy,  26. 
Maun,  600. 
Many,  573. 
Marshall,  105,  111,  141, 

143,  355. 
Martin,  284. 
Maxwell,  356. 
Murray,  642. 
Newburyport,  139. 
Painter,"  135,  136. 
Penn.  Canal  Co.  607. 
People's  Bank,  510. 
Pittsburgh  &c.   R.   R. 
140,  293,  465,  466. 
Pointer,  99. 
Porter,  579. 
Robbins,  356. 
Rowe,  494. 
Ryan,  497. 
Shea,  575. 


XX 


TABLE   0?    CASES   CITED. 


Commonwealth  0.  Slifer,  40. 

v.  Springfield,  25. 

0.  Tewksbury,  438. 

0.  Tracy,  570. 

v.  Tuck,  496,  573. 

v.  "Walton,  547. 

v.  Wei  her,  259. 

v.  Westchester  &c.  R.  R. 

227. 

v.  Wilkinson,  458. 

v.  Williams,  494. 

0.  Wolf,  14. 

v.  Worcester,  402. 
Company  of  Cutlers  0.  Ruslin,  115. 
Comter  v.  Reed,  301. 
Conally  v.  Peck,  609. 
Concord  R.  R.  0.  Greeley,  444,  445. 
Cone  v.  Bowles,  307. 

0.  Donaldson,  508. 

Conger  v.  Barker,  229. 
Congregational  Soc.  v.  Curtis,  599. 
Conkey  v.  Hart,  610,  614. 
Conley  v.  Calhoun  Co.  365. 

v.  Palmer,  79. 

Connecticut  &c.  Ins.  Co.  r.  Cross,  488. 
Conner  v.  Elliott,  567. 

0.  Mayor,  523,  529. 

v.  New  York,  585. 

Connor  v.  Mayor,  40. 

r.  Southern  Express  Co.  98. 

Conrad  v.  Nail,  110. 

Contra  Costa  R.  R.  i\  Moss,  445. 

Converse  v.  U.  S.  210. 

Conway  v.  Cable,  478. 

Cook  v.  Gregg,  435. 

v.  Kendall,  613. 

v.  McChristian,  161. 

v.  Moffat,  613. 

0.  N.  Y.  &c.  Dock  Co.  109. 

V.  Smith,  609. 

Cooley  v.  Board  of  Wardens,  550. 
Coolidge  v.  Williams,  296,  342. 
Coope  v.  Lowerre,  374. 
Cooper,  Matter  of,  374. 

v.  Chester  R.  R.  465. 

0.  State,  493. 

Coosa  River  St.   Bt.  Co.  0.  Barclay,  346, 

608,  617. 

Cope  v.  Rowlands,  71,  72,  339. 
Copemann  v.  Gallant,  43. 
Corbett  r.  Bradley,  316. 

v.  Nutt,  312. 

Corbin  v.  Hill,  142,  478. 

v.  March,  457. 

Corbitt  v.  Poelnitz,  215. 

Corfield  v.  Coryell,  567. 

Coriell  r.  Ham,  610. 

Corliss  v.  Corliss,  323. 

Corn  Exch.  Ins.  Co.  v.  Babcock,  268,  269. 

Cornell  0.  Guilford,  898. 

• v.  Hichens,  614. 

v.  Moultou,  357. 


Corning  r.  Green,  135,  533. 

0.  McCullough,  86. 

Cornwall  0.  Todd,  288. 
Corson  v.  Ball,  371. 
Corwin  0.  Cowan,  472. 

r.  Ward,  535. 

Coster  v.  Tide  Water  Co.  444,  445,  450. 
Gotten  v.  Ellis,  585. 

0.  Leon  Co.  135,  429,  430,  431. 

Couch  v.  Jeffries,  113,  164. 

r.  Steel,  74,  77. 

County  Comm'rs  v.  Franklin  R.  R.  525. 
County  of  Dane  v.  Smith,  510. 
Coutaut  r.  People,  214,  412. 
Covington  v.  McNickle,  45,  360. 

r.  Southgate,  426,  647. 

Cowan  r.  McCutchen,  614. 
Coxe  v.  Martin,  611. 
Coxon  0.  Doland,  226. 
Coy  r.  Coy,  361. 
Craig  0.  Dimmock,  507. 

0.  Flanagan,  478,  645. 

—  0.  Kline,  139,  435. 

0.  Rochester  &c.  R,  R.  458. 

Cramer  0.  State,  96. 
Crandall  0.  James,  490. 

—     0.  Nevada,  508,  562. 
Crane  0.  McGinnis,  146,  410. 

0.  Reeder,  99. 

Craneford  0.  Halsted,  109. 
Crawford  0.  Delaware,  457. 
Crear  ».  Crossly,  448. 
Creighton  v.  Johnson,  496. 

0.  Manson,  429. 

0.  Pragg,  109. 

Creole  0.  Chicago,  427. 
Crcspigny  0.  Wittenoorn,  43. 
Cripps  0.  Durden,  336. 
Crisp  *.  Bunbury,  104,  267. 
Crittenden  0.  Wilson,  30,  343. 
Crocker  v.  Crane,  197,  331. 
Crone  0.  Daniels,  359. 
Cronise  v.  Cronise,  413,  581. 
Crooke  0.  De  Vandes,  222. 
Crosby  ».  Bennett,  76. 

• 0.  Brown,  288. 

0.  Hanover,  443. 

0.  Patch,  96. 

Crosley  v.  Arkwright,  259. 
Cross  0.  Milwaukee,  506. 
Croswell  ».  Crane,  365. 
Crow  v.  Missouri,  508. 
Crowell  0.  Van  Bebber,  269. 
Cruger  0.  Hudson  R.  R.  470,  493. 
Cuff  0.  Commissioners,  464. 
Cumberland  0.  Magruder,  50,  99. 
Gumming  T>.  Police  Jury,  434,  510. 
Cummings  0.  Missouri,  478. 
Cummins  0.  Jefferson  Co.  430. 
Cunningham  0.  Bucklin,  82. 

v.  Campbell,  466. 

Curran  0.  Arkansas,  604,  629. 


TABLE    OF   CASES   CITED. 


XXI 


Curran  v.  Shnttuck,  296,  4C»4,  465. 
Currier  v.  Marietta  &c.  R,  R.  291. 

v.  Phillips,  379. 
Curry  v.  Landers,  616. 
Curtis  v.  Gill,  101,  490. 

v.  Leavitt,  68,  336,  351. 

v.  Morrow,  615. 

v.  Whiffle,  431. 

v.  Whitney,  615. 

Gushing  v.  Warrick,  225,  226. 
Cushman  v.  Smith,  482,  469. 
Cusic  v.  Douglass,  47,  612. 
Cutler  v.  Howard,  376. 
Cutlip  v.  Calhoun  Co.  523,  528. 
Cutts  v.  Hardee,  611,  615. 
Cypress  &c.  Co.  v.  Hoopes,  447. 

Dailey  0.  Burke,  372. 

v.  State,  494. 

Dalby  v.  Wolf,  137. 
Dallis  v.  Fosdick,  566. 
Dalton  v.  Murphy,  316. 
Damman  v.  Comm'rs,  589. 
Dane  r.  Dunning,  494. 
Danforth  v.  Woodward,  298. 
Darby  v.  Newton,  338. 
Darcy  v.  Ketchum,  562. 
Darling  v.  Rogers,  535. 
Darlington  v.  New  York,  432,  582. 
Dart  v.  Houston,  585. 

Dartmouth   College  v.    Woodward,  405, 

594.  601,  632. 

Dash  0.  Van  Kleek,  165,  167,'  180,  561. 
Daughdrill  v.  Ala.  &c.  T.  Co.  588. 
Davidson  v.  Farrell,  437. 

v.  Johonuot,  145,  147,  170. 

v.  Ramsay  Co.  430. 

Davies  v.  Fairbairn,  104. 
Davis  v.  Bank  of  Fulton,  522. 

v.  Bronson,  619. 

v.  Marshall,  300. 

v.  Mayor,  402. 

v.  Menasha,  139,  146. 
r.  O'Farrell,  162. 

•  r.  Packard,  87. 

0.  Pierse,  612. 

0.  State,  526,  528,  530,  533. 

v.  State  Bank,  143. 

•  T.  Woolnough,  521,  535. 
Davis'  Lessee  v.  Helbig,  140. 
Davison  r.  Gill,  275,  2'J9. 

Davy  0.  Burlington  &c.  R,  R.  226. 

v.  Morgan,  288. 

Daw  v.  Metropolitan  Board,  102. 
Dawson  v.  Horace,  490. 

v.  Stafer,497. 

Day  v.  Munson,  228. 

—  v.  Savage,  125. 

—  v.  Stetson,  462. 
Deaderick  v.  County  Court,  479. 
D'Allex  v.  Jones,  280. 

Dean0.  Borchsenius,  506. 


Dean  0.  Charlton.  143. 

v.  Dean,  657. 

0.  Nelson,  476. 

Dean  of  Ely  v.  Bliss,  104. 
Deans  v.  McLendon,  368. 
Dearborn  v.  Brookline,  201. 
De  Baun  v.  Mayor,  538. 

Do  Begnis  v.  Armistead,  71,  339. 

De  Berner  v.  Drew,  372. 

De  Bow  v;  People,  55,  533. 

De  Camp  r.  Eveland,  409,  542. 

De  Chastelleux  v.  Fairchild,  407. 

Deegan  ?:.  Morrow,  530. 

Deerfield  v.  Ames,  391. 

Delaplaine  0.  Cook,  306. 

0.  Crenshaw,  216. 

De  Mill  0.  Lockwood,  140,  644. 

Den  0.  Harndon,  385. 

Denham  0.  Holernan,  526. 

Denning  0.  Roome,  403. 
0.  Smith,  330. 

Denny  0.  Mattoon,139,  141. 

Denton  0.  Polk  Co.  466. 

De  Pauw  v.  New  Albany,  506. 

De  Peyster  v.  Michael,  171. 

Derby  Turn  p.  Co.  0.  Park.  592,  594. 

De  Ruyter  0.  St.  Peter's  Church,  7. 

Desban  0.  Pickett,  102. 

Des  Moines  v.  Layman,  491, 493. 

Detmold  0.  Drake,  467. 

Detroit  v.  Detroit  &c.  Co.  49,  292. 

Deutzee  v.  Waldie,  144. 

De  Varaigue  0.  Fox,  472. 
j  Devoy  0.  New  York,  110. 
j  De  Vries  0.  Conklin,  268. 

Dew  0.  Cunningham,  539. 

Dewart  0.  Purdy,  162. 

Dewey  0.  Goodeuough,  267. 

0.  McLain,  559. 

De  Winton  0.  Mayor,  201. 

Dexter  &c.  PI.  R/Co.  0.  Allen,  104. 

Diamond  v.  Cain,  582. 

Dicas  0.  Lord  Brougham,  82. 

Dickenson  v.  Fitchburg,  466. 

Dickey  0.  Tennison,  448. 

Dike  0.  Lewis,  305. 

Dill  c.  Roberts,  506. 

Dillingham  0.  State,  494. 

Dillon  v.  Dougherty,  644. 

Dingley  0.  Boston,  *446,  472. 

Dishon  0.  Smith,  56.' 

District  of  the  City  of  Pittsburg,  Matter 

of,  433. 
District  Township  r.  Dubuque,  31,  199, 

418. 

Divine  0.  Harvey,  261. 
Doane  0.  Phillips,  379. 
Dobbins  v.  State,  573. 
Dock  Co.  0.  Browne,  292. 
Doc  Lomas  ?:.  State,  566. 
Dodd  0.  Miller,  584,  618. 

0.  State,  111. 


XX11 


TABLE    OF   CASES   CITED. 


».  Chandler,  372. 

v.  Gridley,  212. 

0.  Woolsey,  598,  638. 

Doe  B.  Avaline,  209,  296. 

—  n.  Bridges,  77. 

—  v.  Gully,  116. 

—  v.  Nayior,  116. 

—  v.  Richards,  114. 

—  v.  Routledge,  276. 
Dolan  v.  Thomas.  101,  560. 
Dominick  v.  Michael,  385. 

v.  State,  575. 

Donahoe  v.  Richards,  14,  514. 
Donberger  v.  Reed,  490. 
Donelly  v.  Corbett,  606. 
Donner  v.  Palmer,  163. 

Donovan  0.  Vicksburg,  435,-  476,  492. 

Don-worth  0.  Coolbaugh,  109. 

Dorgan  v.  Boston,  428. 

Dorman  v.  State,  436. 

Dorrance  Street,  Matter  of,  427,  428. 

Doswell  v.  Impey,  82. 

Doughty  v.  Hope,  30i. 

Douglas  v.  Bank  of  Missouri,  25. 

v.  Boonsboro'  Turnp.  Co.  458. 

0.  Rowland,  365. 

0.  Pacific  Mail  &c.  Co.  372. 

Dow  v.  Norris.  170. 

0.  Wakefield,  139. 

Downham  0.  Alexandria  Council,  562. 
Downing  v.  Rugar,  303. 
Dozier  v.  Ellis,  277. 
Drainage  &c.,  Matter  of,  447. 
Draper  0.  Emerson,  367. 

v.  Fally,  532. 

Drehman  v.  Stifle,   437,  561,  589,   619, 

645. 

'Drennan  v.  People,  367. 
Drexel  ».  Commonwealth,  504,  506,  587. 
Dronberger  v.  Reed,  464,  465. 
Dubois  0.  Killy,  9. 
Ducat  0.  Chicago,  504,  562. 
Dudley  v.  Mahew,  74,  76,  87. 

v.  Reynolds,  226. 

Duer  v.  Small,  508. 

Duffield  v.  Smith,  114. 

Duffy  v.  People,  491. 

Dugan  0.  Bridge  Co.  49,  291. 

Duncornbe  v.  Prindle,  45,  267,  522. 

Dunham  v.  Chicago,  505. 

Dunlap  V.  Pulley,  464. 

Dunn's  Adm'r  0.  Sargent,  643. 

Dunwell  0.  Bid  well,  108. 

Duramus  v.  Harrison,  366. 

Durfee  v.  Old  Colony  R.  R.  622. 

Durham  v.  Lewiston,  146. 

Durkee  v.  Janesville,  477,  520. 

Dutch  Church  0.  Mott,  660. 

Dutchess  Cotton  Man.  Co.  v.  Davis,  343. 

Dwelly  v.  Dwelly,  269. 

Dyson  v.  West's "Ex'or.  272. 

Dyster,  Exparte,  69,  402. 


Eakin  v.  Raub,  407,  415.  653. 
Earl  of  Ailesbury  r.  Pattison,  210. 
Earl  of  Buckinghamshire  r.  Dourv,  216. 
East  Hartford  v.  Hartford  Bridge  Co.  25, 

296,  600,  605. 
East  India  Docks   &c.  R.  R.  v.  Gattke, 

462. 

East  Saginaw  &c.  Co.  v.  E.  Saginaw,  586. 
East  St.  Louis  v.  St.  John,  453. 
v.  Wehrung,  504. 

East  Tenn.  R.  R,  v.  Love,  443,  464. 
Eastern  &c.  R.  R.  0.  Marriage,  373. 
Easton  v.  Calendar,  82. 
Easton  Bank  v.  Commonwealth,  586,  587. 
Eaton  v.  Boston,  &c.  R.  R.  455,  458. 
Eddiugs  v.  Sea-brook,  456. 
Edgar  0.  Greer,  99. 
Edmunds  v.  Lawley,  164. 
Edrich's  Case,  220. 
Edward,  Henry,  Exparte,  496. 
Edwards  v.  Dick,  257,  258. 

r.  James,  323. 

r.  McCaddon,  613.' 

0.  Pope,  43,  146,  413. 

0.  Stonington  &c.  Ass.  447. 

Egyptian  Levee  Co.  v.  Hardin,  427,  447. 
Elam  0.  Rawson,  224. 

Eldridge  v.  Knott,  95. 

v.  Smith,  442,  445,  447. 

Elias  0.  Nightingale,  279. 
Elizabethtown  &c.  R.  R.  v.  Helm,  467. 
Ellah  v.  Leigh,  215. 

Ellicottville  &c.  PI.  R.  0.  Buffalo  &c.  PI. 

R.  473. 
Elliott  0.  Fairhaven  &c.  R.  R.  458. 

v.  Lochnane,  99. 

0.  People,  574. 

0.  Swartwout,  332. 

Ellis  0.  Batts,  98. 

0.  Murray.  225. 

0.  Page,  "179,  366. 

Ellison  0.  Jackson,  110. 

a.  Mobile  &c.  R.  R.  201. 

Ellsworth  0.  Cole,  360. 
Elmendorf  v.  Carmichael,  44. 

v.  Taylor,  369. 

Elrod  0.  Gililand".  102. 

El*on  0.  Eason,  222. 

Elwood  v.  Klock,  365. 

Ely  0.  Holton,  110,  162. 

Emanuel  v.  Constable,  43. 

Embury  0.  Conner,  88,  451,  473. 

Emerick  0.  Harris,  498,  497. 

Emery  0.  San  Francisco  Gas  Co.  426,  427. 

Emmerson  0.  Taylor,  392. 

Empire  City  Bank,  Matter  of,  476,  488, 

588. 

Enderman'0.  Ashby,  495. 
Enfield  Toll  Bridge  Co.  0.  Conn.  River 

Co.  594. 

0.  Hartford  &c. 

R.  R.  639. 


TABLE    OF   CASES   CITED. 


XX111 


English  v.  New  Haven  R.  R.  620. 

— . —     v.  Supervisors,  583. 
Englishbee  v.  Hehnuth,  652. 
Enking  v.  Simmons,  300. 
Entick  v.  Carrington,  498. 
Entwhistle  v.  Dent,  318. 
Ericsson  v.  Brown,  373. 
Erie  v.  Erie  Canal  Co.  582,  607. 
Erie  R.  R.  v.  Commonwealth,  609. 

v.  New  Jersey,  563. 

Erlinger  v.  Boneau,  527. 
Ernst  v.  Kunkle,  427. 
Ervine's  Appeal,  480. 
Eskridge  v.  McGurder,  208. 
Essex  Turnp.  Co.  «.  Collins,  343. 
Estep  v.  Hitchman,  143. 
Esterly's  Appeal,  269. 

Evans  v.  Browne,  55,  56. 

0.  Eaton,  581. 

«.  Haefner,  472. 

v.  Meyers,  218. 

v.  Montgomery,  626. 

v.  Sharp,  506,  530. 

Evansville  &c.  R.  R.  v.  Dick,  457. 
Everett  v.  Wells,  208. 

Ewing  «.  Directors  &c.  496. 

®.  Filley,  490. 

Executive  Communication,  Matter  of,  533. 
Executors  of  Burr  ».  Smith,  14. 
Exline  v.  Smith,  494. 

Fairbanks  v.  Antrim,  283. 

v.  Wood,  357. 

Fairtitle  ».  Gilbert,  601. 

Falconer  v.  Robinson,  520,  532. 

Farley  •».  Dowe,  521. 

Farmers'  L.  &  T.  Co.  ».  Walworth,  88. 

Farmers'  &  Mech.  Bk.  ».  Smith,  410,  613. 

Farnsworth  v.  Vance,  610,  611. 

Farr  v.  Brackett,  365. 

Farrell  Foundry  ».  Dart,  310. 

Farrington  v.  Morgan,  275. 

•Fashion  v.  Wards,  222. 

Faxton  v.  McCosh,  509. 

Fellows  v.  Deniston,  387. 

Felt  v.  Felt,  99. 

Feuelon's  Petition,  Matter  of,  433. 

Fennell  v.  Redler,  69. 

Ferguson  c.  Miners  &c.  B'k.  25. 

v.  Sandrarn,  88,  432. 

Ferris  v.  Bramble,  448,  465. 
Fetter,  matter  of,  568,  569. 

«.  Wilt,  477. 

Field  9.  Goldsby,  227. 
Fifield  ».  Close,  507. 
Figg  v.  Snook,  373. 
Find  v.  McDowell,  116. 
Finney  v.  Ackerman,  161. 

Fire  Department  ».  Harrison,  486,  489. 
v.  Helfenstein,  425,  504, 

562. 
Fireman's  Ass.  ».  Lounsbury,  522. 


First   Baptist   Ch.   v.  Utica  &  S.  R.  R. 

459. 

First  Mass.  Turnp.  v.  Field,  277. 
Fisher  v.  Blight,  195. 

».  Horicon  Co.  372. 

v.  McGirr,  415,  440. 


Fishkill  v.  Fishkill  PI.  R.  Co.  527,  528. 
Fisk  v.  Briggs,  162. 

—  v.  Foster,  622. 

—  v.  Framingham  Man.  Co.  447. 
Fitchburg  R.  R.  v.  Grand  Junction  R.  R. 

608,  620. 
Fitzgerald  v.  Champneys,  99. 
Fitzpatrick  v.  Gibhart,  226. 
Flaherty  v.  Thomas,  101,  560. 
Fletcher  v.  Lord  Sondes,  281. 

v.  Oliver,  530. 

v.  Peck,  113,  159,  409,  545,  552, 

554,  557,  588,590,  591,  632. 

v.  Rutland  &c.  R.  R.  619. 

Florentine  v.  Barten,  140. 
Flournoy  v.  State,  573. 

Floyer  v.  Edwards,  217. 

Foley  v.  State,  528. 

Foliauib's  Case,  75. 

Folkestone  v.  Woodward,  372. 

Fontaine  v.  Phoenix  Ins.  Co.  78. 

Foote  v.  Prowse,  318. 

Ford  v.  Chicago  &c.  R.  R.  445,  458. 

Fordyce  v.  Goodman.  55. 

Forrest  v.  Forrest,  219,  366. 

Fort  Miller  &c.  PI.  R.  Co.  v.  Payne,  76. 

Forth  v.  Chapman,  222. 

Forward  v.  Hampshire  &c.  Canal  Co.  443. 

Fosdick  v.  Perrysburg,  67,  99. 

Foster  «.  Banburv,  43. 

v.  Essex  B'k,  410,  660. 

v.  Kenosha,  428. 

v.  Neilson,  386,  387. 

v.  Pritchard,  47. 

v.  State,  575. 

Fouke  v.  Fleming,  55,  200. 
Fowler  v.  Stoneum,  7. 
Fox,  Matter  of,  509. 
v.  Dunkel,  435. 

v.  Western  Pacific  R.  R.  465. 

Foxcroft  v.  Mallett,  551. 
Frank  v.  San  Francisco,  316. 
Franklin  Glass  Co.  v.  White,  343. 
Frantz'  Appeal,  508. 
Free  v.  Burgoyne,  430. 
Freeland  v.  Hastings,  426,  432. 

i).  McCullough,  85. 

Freeman  v.  Moyes,  114,  164. 
French  v.  Teschemaker,  267,  535. 
Frewin  v.  Lewis,  397. 
Frohock  v.  Pattee,  333. 
Frolichstein  ».  Mayor.  14,  512. 
Frost  v.  Brisbin,  563.' 

0.  Fay,  255. 

Fry  0.  Booth.  317. 
Fuller  «.  Edings,  456. 


XXIV 


TABLE    OF   CASES   CITED. 


Fullerton  ».  McArthur,  140. 

«.  Spring,  96. 

Fulton  Bank  v.  Beach,  185,  186. 

Furlillio  <c.  Crowther,  344. 

Furman  v.  New  York,  194,  202,  391. 

.  n.  Nichol,  588. 

Furmau'  Street,  Matter  of,  433. 

Gabbert  ».  Jeffersonville  R.  R.  527. 

Gabil  v.  Houston.  512. 

Gage  0.  Currier,  515. 

Galbraith  «.  Galbraith,  367. 

Gale  «.  Mead,  116,  321. 

Galena  v.  Amy,  375. 

Galena  &c.  R.  B.  e.  Appleby,  608,  620. 

Galloway  «.  Jenkins,  372,  431. 

v.  London,  230,  292. 

Games  v.  Stites,  369,  579. 
Gardner  ».  Collector,  26,  55. 

v.  Collins,  368,  374. 

v.  Newbury,  442. 

Garland,  Ex parte,  478,  557. 
Garrett  v.  Beaumont,  168. 

v.  Cordell,  609. 

v.  St.  Louis,  467. 

Gas  Consumers'  Co.  r.  Clarke,  102. 

Gaskin  v.  Meek,  529. 

Gastpn  v.  Babcock,  489,  491. 

Gates  v.  Salmon,  201. 

Gatlin  v.  Walton,  581. 

Gaul  v.  Brown,  109. 

Gault's  Appeal,  616. 

Gazelle  v.  Lake,  108. 

Gedney  «.  Inhab.  of  Tewksbury,  344. 

Gee  v. ' Wilden,  402. 

Geebrick  r.  State,  136,  137,  535. 

Gelpke  v.  Dubuque,  430,  618. 

Genkniger  t>.  State,  109. 

Gentite  v.  State,  535. 

Georgia  v.  Stanton,  159. 

Gerrard  n.  Dickenson,  222. 

Gerry  v.  Stoneham,  161. 

Gibbons  v.  Mobile  &c.  R.  R.  429. 

«.  Ogden,  342,  413,  553. 

Gibson  «.  -Belcher,  354. 

v.  Jenney,  274. 

«.  State,  279. 

Giddings  v.  Cox,  365. 

Giesey  v.  Cincinnati  &c.  R.  R.  445,  447. 

Gifford  V.  Livingston,  533. 

v.  New  Jersey  R.  R.  530,  620. 

Gilbert  v.  Col.  Turnp.  Co.  374. 
Gildart «.  Gladstone,  293. 

Giles  v.  Ferrers,  222. 

Gilkeson  v.  Frederick  Justices,  504,  508. 

Gill  v.  Parker,  436. 

Gillan  v.  Hutchinsoh,  459. 

Gillespie  n.  Palmer,  533. 

v.  State,  527. 

Gillett  v.  Campbell,  382. 

v.  Hartford,  297. 

».  Moody,  310,  380,  381,  382. 


Gillett  v.  Shnrke,  98. 
Gilliland  «.  Phillips,  109. 
Gil  Ira  ore  v.  Shorter's  Ex'or,  113. 
Gilman  v.  Lockwood,  606. 

v.  Sheboygan,  228,  505,  509,  583, 

587.* 
Gilmer  r.  Lime  Point,  296,  445,  447,  448r 

449,  453. 

Girard  0.  Philadelphia,  582. 
Girdner  e.  Stephens.  644. 
Glaholm  «.  Barker,  108. 
Glasgow  v.  Rouse,  510. 
Glassington  v.  Rawlins,  356. 
Gloucester  Ins.  Co.  v.  Younger,  551. 
Glover  v.  North  Staff.  R.  R.  462. 

».  Powell,  457,  585. 

Goddard,  Matter  of,  510. 
Godden  «.  Hales,  177. 
Goelet  ».  Cowdry,  276. 

Goenan  v.  Schroeder,  588.  610,  620. 
Goggans  ».  Turnipseed,  611. 
Going  D.  Emerey,  14. 
Goldman  ».  Clark,  418. 
Gooch  v.  Stephenson,  345. 
Goodel  v.  Jackson,  365,  390. 
Goodin  v.  Cincinnati  &c.  R.  R.  466. 
Goodrich  0.  Russell,  210. 

v.  Winchester  &c.  Co.  426,  427r 

Gordon  e.  Appeal  Tax  Court,  598,  632. 

«.  Comes,  431.  524. 

v.  Jngraham,  346. 

«.  South  Fork  &c.  Co.  617. 

v.  State,  47. 

v.  Ward,  13. 
Gordon's  Ex'ors  ®.  Mayor,  599. 
Gore  «.  Brazier,  223,  2*65. 
Gorman  v.  Hammond,  100. 

v.  Pacific  R.  R.  607. 

Goshen  v.  Richmond,  347. 

e.  Stonington,  131,  350,  641,  660. 

Goshen  &c.  Co.  v.  Hurtin,  343. 
Goshorn  e.  Purcell,  144. 

Gosselink  v.  Campbell,  435. 
Goszler  «.  Georgetown,  600. 
Gotcheus  v.  Matheson,  559. 
Gould  0.  Glass,  452. 
— —  'o.  Hudson  Riv.  R.  R.  455. 

T.  James,  390. 

v.  Johnson,  27. 

, v.  Langdon,  210. 

v.  Sub  District,  360. 


r.  Venice,  429. 

Gowen  v.  Penobscot  R.  R.  617. 
Grace,  Kx  parte,  490. 

v>.  Clinch,  259. 

v.  Donovan,  47. 

Graham,  Ex  parte,  109. 

f.  State,  617. 

v.  Van  Wyck,  272. 

Graniteville  &c.  Co.  v.  Roper,  588. 
Grannahan  v.  Hannibal  &c.  R.  R.  608,  617. 
Grant  t.  Courier,  135. 


TABLE    OF   CASES   CITED. 


XXV 


Grant  v.  Kemp,  164. 

Gray  v.  Brooklyn,  582.        * 

v.  First  Division  &c.  458. 

v.  Kimball,  436,  476,  500. 

«.  Larrimore.  269. 

•».  Russell,  117. 

Great  Central  &c.  Co.  v.  Clarke,  99. 
Great  Falls  &c.  Co.  v.  Fernald,  447. 
Great  Western  &c.  Co.  v.  Saas,  617. 
Green  ».  Biddle,  552,  577,  595,  623,  632. 

v.  Briggs,  492,  576,  579. 

v.  Commonwealth,  208. 

«.  Ilolway,  508. 

v.  James,  550,  576. 

».  Kemp,  259. 

v.  Lessee  of  Neal,  368. 

v.  Neal,  369. 

v.  New' York,  228. 

v.  Shumway,  558. 

v.  U.  S.  337. 

v.  Van  Buskirk,  562. 

«.  Weller,  22o,  533. 

v.  Wood.  207. 

Greencastle  «.  State,  228,  532. 
Greenfield  v.  Dorris,  616. 
Greenough  v.  Greenough,  350. 
Greer  v.  State,  110. 
Griffin  ®.  Mixon,  477. 

v.  Rauney,  508. 

v.  Wilcox,  437. 

Griffin's  Ex'or  ®.  Cunningham,  139. 
Griffith  t>.  Wells,  32,  71. 
Grignon's  Lessee  v.  Astor,  301. 
Grim  ».  Weissenburg  Dist.  432. 
Grimball  «.  Rose,  407. 
Grinder  v.  Nelson,  351. 
Grindley  v.  Barker,  331. 
Groesbeck  ».  Seeley,  478. 
Grogan  v.  San  Francisco,  582,  583. 

«.  State,  573. 

Gromes  v.  Bryne,  612. 

Gross  e.  Fowler,  356,  372. 

Grosset  v.  Ogilvie,  115,  336. 

Grosvenor  «.  Chasley,  610,  617. 

Groton  r.  Hurlbut,  359. 

Grover  v.  Coon,  115. 

Grubbs  ».  State,  522. 

Guenther  «.  People,  575. 

Guild  v.  Rogers,  610,  614. 

Guile  v.  Brown,  490. 

Guilford  ».  Chenango  Co.  426,  506. 

®.  Cornell,  527. 

Guillotte  v.  New  Orleans,  455,  588. 
Gunn  v.  Barry,  47,  585,  606,  612. 

~v.  Hendry,  615,  619. 

Gunter  v.  Dale  Co.  521. 

v.  Leckey,  279. 

Guy  ».  Heruiance,  139. 
Gwin  v.  Barton,  578. 

•».  Breedlove,  578. 

Gwinner  v.  Lehigh  &c.  R.  R.  101. 
Gye  v.  Felton,  259. 


Harlden  ®.  Collector,  204. 
Hadfield  v.  Mayor,  139,  618. 
Haentze  «.  Howe,  204. 
Haggard  v.  Hawkins,  522. 
H aight  <c.  Grist,  507. 
Haines  v.  Levin,  491. 
Halbert  v.  McCulloch,  373. 
Hale  0.  Huston,  619. 

v.  Kenosha,  506. 

v.  N.  J.  Steam  Nav.  Co.  364. 

Hale  &c.  Co.  v.  Storey  Co.  508. 
Haley  v.  Clark,  540. 
Hall  v.  Bergen,  362. 

v.  Bunte,  525. 

v.  Dyson,  70. 

v.  Franklin,  264. 

Hallett  v.  Noouan,  71. 
Halsted  ®.  Mayor,  398. 
Ham  TO.  Sawyer,  218. 

v.  Steamboat  Hamburg,  269. 

Hamilton  t.  Keith,  608. 

v.  Fond  du  Lac,  143. 

«.  Steamboat  Hamilton,  225. 

v.  Williams,  379. 

Hamilton  Avenue,  Matter  of,  460. 
Hamilton  &c.  Ins.  Co.  «.  Parker,  476. 
Hamlet  ».  Taylor,  67. 

Hammett  ».  Philadelphia,  430. 
Hammond  v.  Anderson,  215. 

v.  Haines,  136. 

Hampshire  v.  Franklin,  653. 
Hampson  v.  Weare,  476. 
Hampton  ».  Commonwealth,  112. 

v.  Erenzeller,  357. 

«.  McConnell,  63,  562. 

Hancock  ».  Ritchie,  614. 
Hancock  Street,  Matter  of,  433. 
Hand  r.  Ballou,  306. 

Haney  v.  Marshall,  562. 

Hanlon  v.  Supervisors,  509. 

Hannibal  v.  Hannibal  &c.  R.  R.  443,  445. 

Hannibal  &c.  R.  R.  v.  Muder,  445,  447. 

v.  Shacklett,  297. 
Hannum  v.  Bank  of  Tenn.  161. 
Hansen  v.  Vernon,  430. 
Hapgood  T.  Doherty,  490,  491. 
Happy  r.  Mosher,  477. 
Harbeck  v.  New  York,  110. 
Hard  •».  Nearing,  435. 
Hardeman  v.  Downer,  612. 
Hardin  ».  Owings,  327. 
Harding  v.  Butts,  478. 

v.  Goodlett,  447,  454. 

Hardy  man  v.  Whitaker,  336. 
Hargreaves  v.  Smith,  325. 
Harley  v.  Kamsey,  269. 
Harman  ».  Brotherson,  82. 
Harmon  r.  Wallace.  615. 
Harpending  v.  Dutch  Ch.  84. 

v.  Haight,  54. 

Harper  v.  Commissioners,  490,  539. 
i).  Richardson,  465. 


XXVI 


TABLE    OF    CASES   CITED. 


Harrell  0.  Harrell,  209. 
Harrington  v.  Rochester,  353. 

v.  Smith,  360. 

0.  Wands,  532. 

Harris  v.  Roof's  Ex'ors,  54. 

v.  Runnells,  72,  339. 

t>.  Thompson,  444. 

0.  Wood,  303,  496. 

Harrison  0.  Chiles,  496. 

v,  Stipp,  631. 

Hart  v.  Adams,  396. 
v.  Gaveu,  427,  505. 

v.  Reynolds,  210. 

v.  State,  163,  560.      » 

Hartford  Bridge  Co.  v.  Union  Ferry  Co. 

291. 
Hartford  &c.  R.  R.  0.  Crosswell,  362. 

v.  Kennedy,  343,  345. 
Hartung  ».  People,  109,  559,  560,  574. 
Hartwell  v.  Armstrong,  444,  447. 
Hartzell  0.  Commonwealth,  493. 
Harvey  v.  Lackawanna  R.  R.  456. 

v.  Thomas,  159. 

Harward  0.  St.  C.  &c.  Co.  429. 
Hasbrouck  v.  Milwaukee,  143. 

v.  Shipman,  611.     . 

Haskell  v.  Burlington,  1G3. 
Hastings  0.  Mead,  116. 

Hatch  0.  Cincinnati  &c.  R.  R.  459,  466, 
472. 

„.  Verm.  Cent.  R.  R.  131,  462. 

Hathaway  v.  Moran,  109. 
Hatzfield  v.  Gulden.  53. 
Havemeyer  v.  Iowa  Co.  618. 
Haven  v.  Foster,  365. 
Haverhill  Bridge  Co.  v.  County  Comni'rs, 
445. 

0.  Essex  Co.  139. 

Hawkins  0.  Barney's  Lessee,  632. 
Hawthorne  0.  Calif,  617. 
Hay  0.  Cohoes  Co.  447. 
Haybume's  Case,  406. 
Havdon  0.  Supervisors,  224. 
Hayes  0.  O.  O.  &  R.  V.  R.  R.  467. 
Haynes  v.  Thomas,  457. 
Hays  0.  Risher,  445. 
Hayward  0.  Mayor,  444. 
Hazen  0.  Essex  *Co.  447. 
Head  0.  Univ.  of  Mo.  585. 
Hearn  0.  Camp,  645. 

0.  Exvin,  269. 

Hector  0.  State,  574. 
Hedger  v.  Rennaker,  163. 
Hegeman  0.  Blake,  490. 
Helmore  0.  Shuter,  163. 
Henderson  0.  Bise,  360. 

0.  Brown,  82. 

Hendrickson  0.  Hendrickson,  68. 
Henley  v.  Mayor,  331. 

Hennicker  0.  Contoocook  Valley  R.   R. 

344. 
Henry  v.  Dubuque  &c.  R.  R.  465,  466. 


Henry  v.  Henry,  526,  534,  535. 

0.  Pittsburg  &c.  Bridge  Co.  460. 

0.  Salina  Bank.  339. 

0.  Tilson,  214,  200,  285. 

Henry  Stecknoth,  Matter  of,  644. 
Hepburn  0.  Curts,  172. 

0.  Griswold,  161. 

Herbert  0.  Easton,  615. 
Heridia  0.  Ayres,  26. 
Herrick  0.  Randolph,  501,  511. 
Hess  0.  Johnson,  645. 

0.  Pegg,  368. 

Hessler  0.  Drainage  Coram'rs,  429. 
Hewitt  r.  State,  494,  547. 
Heyneman  0.  Blake,  457,  472. 
Heyward  v.  Judd,  610,  616. 
0.  Mayor,  472. 

Matter  of,  569.' 

Hibbard  0.  People,  436,  477. 
Hickox  0.  Tallman,  644, 
Hicks  0.  Whitmore,  276. 
High  0.  Shoemaker,  477,  505. 
Hilbish  0.  Catherman,  432. 
Hildreth  0.  Lowell,  446. 
Hill,  Exparte,  52,  373. 

0.  Boyland,  317. 

0.  Commissioners,  530. 

0.  Forsyth  Co.  429. 

0.  Higdon,  426,  428,  504. 

0.  Kessler,  612. 

r.  Kricke,  613. 

0.  People,  494. 

v.  Smith,  56. 

0.  Sunderland,  145. 


Hills  v.  Hunt,  402. 
Hilour's  Case,  651. 
Hindle  0.  O'Brien,  290. 
Hindman  0.  Piper,  140. 
Hine  0.  Pomeroy,  47. 
Hines  0.  Aydelotte,  530. 

0.  Leavenworth,  428. 

0.  Lockport,  317. 

Hingham  0.  Norfolk,  88,  139. 
Hingle  0.  State,  526,  535. 
Hinsdale  0.  Larned,  344. 
Hinsen  0.  Lott,  563. 
Hinson  0.  Sothe,  508. 
Hinton  0.  Hinton,  644. 
Hiriart  0.  Ballou,  578. 
Hirsh's  Case,  510. 
Hitchcock  0.  Way,  114. 
Hoa  0.  Le  Franc,  163. 
Hoag  0.  Peck,  296. 
Hobart  0.  Detroit,  372. 

0.  Supervisors,  135. 

Hodges  0.  Buffalo,  398. 
Hodgson  0.  Fullarton,  338. 

0.  Millward,  437. 

Hoffman  0.  State,  280,  574, 
Hogan  0.  Devlin,  317. 
Hoguet  0.  Wallace,  310,  312. 
Hoit  0.  Burleigh,  489. 


TABLE    OF   CASES   CITED. 


XXV11 


Hoke  v.  Henderson,  480. 
Holbrook  0.  Finney,  653. 
v.  Holbrook,  43,  515. 

v.  Nicbol,  110. 

Holcoinb  v.  Tracy,  613. 

H olden  v.  James'  Adm'rs,  146,  657. 
Holland  0.  Osgood,  323. 

0.  State,  371. 

Hollenback  v.  Fleming,  300. 
Hollewell  t.  Bridgewater,  47. 
Hollo-way  0.. Sherman,  610,  611. 
Holman  v.  Johnson,  239. 

v.  King,  364. 

Holmes  v.  Holmes,  603. 

Holyoke  v.  Haskins,  635,  653,  659. 

Holyoke  Co.  v.  Lyman,  621. 

Homan  v.  Liswell,  357. 

Home  of  the  Friendless  v.  Rouse,  586. 

Homer  r.  Fish,  277. 

Homestead  Cases,  612. 

Hook  v.  Gray,  69. 

Hooker  v.  New  Haven  &c.  Co.  457,  469. 

0.  Young,  321. 

Hooper  0.  Scheimer,  367. 
Hoopes  v.  Meyer,  109. 
Hope  &c.  Ins.  Co.  0.  Flynn,  143. 
Hopkins  v.  Jones,  163. 

v.  Ladd,  494. 

0.  Mason,  142,  279. 

0.  Stapers,  222. 

Horn  0.  Atlantic  &c.  R.  R.  608. 
Homer  v.  State,  279. 
Horton  v.  Auchmody,  82. 
Hospital  v.  Philadelphia  Co.  599. 
House  0.  State,  102. 

Howard  v.  Earl  of  Shrewsbury,  229. 

v.  First  Church,  427. 

v.  Williams,  299. 

Howell  v.  Bristol,  429. 

v.  Fry,  492. 

v.  Howell,  613. 

Howey  v.  Miller,  269. 

Howser  v.  Commonwealth,  493. 

Hoyt  V.  Commissioners,  508^ 

v.  Dillon,  306. 

Huber  v.  People,  524,  529. 
Hudson  i).  Temple,  339. 
Hudspeth  v.  Davis,  60. 
Hughes  i).  Chester  &c.  R.  R.  45. 

0.  Farrar,  229,  365. 

v.  Hughes,  495. 

0.  Lumey,  353. 

«.  State,  574. 

Humbolt  Co.  v.  Churchill  Co.  Commr's, 

522,  618. 

Hume  0.  Gossett,  98. 
Humphrey  0.  Chamberlain,  74. 

».  Pegues,  586. 

0.  Whitney,  599. 

Hunsaker  r.  Borden,  584. 

0.  Wright,  504. 

Hunt  0.  Holden,  358. 


Hunt  0.  Lucas.  493. 

0.  Vanbelstyer,  533. 


Hunter  0.  Cobb,  508. 

0.  Hatch,  644. 
Huntzinger  0.  Brock,  610,  611. 
Hurley  0.  Powell,  478. 
Huston  0.  College,  619. 
Hyatt  0.  McMahon,  622. 
Hyde  0.  Cogan,  310. 

0.  White,  356. 

Hymes  0.  Aydelotte,  404,  535. 

Iglebart  v.  Wolfin,  616. 

Igoe  0.  StateJ  522. 

Illinois  Cent.  R.  R.  0.  McLean  Co.  504. 

Illinois  &c.  College  0.  Cooper,  608. 

Ilsley  0.  Meriam,  622. 

Imlay  0.  Union  Branch  R.  R.  458. 

Indiana  Cent.  R.  R.  0.  Potts,  520. 

Indianapolis  &c.  R.  R.  0.  Kercheval,  588, 

608. 

Industrial  School  &c.  0.  Whitehead,  102. 
Ingalls  0.  Cole,  210. 
Inge  0.  Murphy,  364. 
Ingersoll  0.  State,  338. 
Inglis  0.'  Usherwood,  364. 
Ingraham  0.  Hart,  363. 

0.  Speed,  255. 

Ingrain  0.  State,  436. 
Inhabitants  &c.  0.  Baker,  84. 

0.  Conn.  River  R.  R.  314. 

0.  County  Comm'rs,  510. 

0.  Lunenburgh,  497. 
Inkster  0.  Carver,  530. 
Iowa  &c.  Co.  0.  Webster  Co.  267. 
Ireland  0.  Palestine  &c.  Co.  617. 
Iron  City  Bank  0.  Pittsburg,  586,  622. 
Iron  Man.  Co.  v.  Haight,  356. 
Isoin  0.  Miss.  &c.  R.  R.  464. 
Iver  0.  Ragan,  277. 
Ives  0.  Finch,  359. 

Jack  v.  Martin,  570. 
Jackoway  0.  Denton,  616. 
Jackson  0.  Butler,  612. 

0.  Catlin,  27,  556,  650. 

0.  Chew,  368. 

0.  Collins,  256,  260. 

0.  Cory,  650. 

0.  Edwards,  602. 

0.  Esty,  87,  304. 

0.  Frost,  649. 

0.  Lamphire,  555,  632,  634,  637. 

0.  Lervey,  390. 

t\  Lunn,  651. 

0.  Lyon,  652. 

0.  M'arsh,  390. 

0.  Morse,  305. 

0.  Shawl.  535. 

0.  State,  575. 

0.  Van  Valkenburgh,  357. 

0.  Varick,  185,  186. 


XXV111 


TABLE   OF    CASES    CITED. 


Jackson  v.  Warren,  270. 

».  Wood,  497,  555. 

v.  Wright.  652. 

».  Young,  323. 

Jackson  Co.  ».  La  Crosse  Co.  583. 
Jacobs  v.  Graham,  357. 

V.  Small  wood,  611. 

Jacobus  v.  Knapp,  644. 
James  t.  Buzzard,  108. 

v.  Commonwealth,  555,  580. 

e.  Patten.  179. 

T.  Reynolds,  480. 

r.  Stall,  616. 

Jane  v.  Commonwealth,  547. 

Janesville  v.  Markhoe,  103. 

Jaques  v.  Withey,  112. 

Jefferson  Branch  B'k  v.  Skelly,  586. 

Jeffries  r.  State,  574. 

Jenkins  v.  Andover,  431. 

f.  Betharn,  353. 

•».  Hooker,  71. 

r.  Union  Turnp.  Co.  343. 

Jenkinson  v.  Thomas.  281. 
Jenks  0.  Langdon,.  355. 
Jerome  v.  Ross,  442. 

Jersey  City  v.  Hudson,  292. 
Jersey  City  &c.  R.  R.  v,  Jersey  City  &c. 
R.  R.  458,  592. 

Jersey  Co.  0.  Davison,  204,  255,  263. 
Jocelyn  v.  Barrett,  354. 
John  v.  Cincinnati  &c.  R.  R.  430,  431. 
John  and  Cherry  Streets,  Matter  of,  451. 
Johnes  v.  Johnes,  309. 
Johnson  v.  Alameda  Co.  465. 

v.  Babcock,  509. 

v.  Bond,  613. 

«?.  Burrell,  167. 

v.  Bush,  195. 

v.  Byrd,  100. 

v.  Campbell,  432. 

v.  Chambers,  13. 

v.  Commonwealth,  599. 

r.  Higgins,  530,  611. 

v.  Hudson,  71,  339. 

T.  Johnson,  645. 

r.  Joliet  &c.  R.  R.  228,  464. 

v.  Meeker,  108,  109. 

v.  Philadelphia,  291,  608. 

v.  Setnple,  614. 

v.  Sutton,  338. 

Jones'  'Appeal,  617. 
Jones  v.  Boston.  428. 

v.  Columbus.  526. 

v.  Commissioners.  532. 

v.  Dexter,  230. 

f.  Estate  of  Keep,  507. 

v.  Galena  &c.  R.  R.  608. 

r.  Harrison,  220,  377. 

r.  Hutchinson,  55,  56. 

v.  McMahon,  611. 

«.  Perry,  148,  480. 

t>.  Robbins,  437,  491. 


Jones  v.  Root,  492. 

r.  Smart.  263. 

r.  Smith.  29. 

v.  State,  47. 

T.  Taintor,  372. 

r.  Tatham,  28. 

v.  Theall,  56. 

Jordan  r.  Dobson,  645. 

v.  Woodward.  447. 

Joslyn  v.  Pacific  Mail  Co.  622. 
Josselyn  «.  Stone,  337. 
Journeay  e.  Gibson,  144. 

Joy  T.  Jackson  &c.  Co.  141. 

a.  State,  575. 

Joyce  v.  Mayor,  523. 
Judd  r.  Fulton,  357. 
Judson  T.  Reardon,  437. 
Justices  &c.  r.  Murray,  555. 

T.  P.  &  W.  &c.  Turnp.  Co. 

395,  434. 

Kanavan's  Case,  9. 
Kane,  In  re,  568. 

v.  Baltimore,  472. 

Kay  v.  Gordon,  111. 
— -T.  Penn.  R.  R.  644. 
Kearnd  «.  McCarville,  615. 
Keater  t.  Ulster  &c.  PI.  R.  Co.  88. 
Keene  v.  Bristol,  469. 

Keith  v.  Quinney,  204. 

v.  Ware,  145. 

Keller  v.  State,  109.  436.  530. 
Kelley  v.  Kilso,  347. 
Kelloprg  v.  Oshkosh,  103. 

r.  State  Treas.  52,  375. 

Kelly  v.  Drury,  C06. 

v.  Harrison,  582,  602,  651. 

v.  State,  534. 

Kendall  v.  Dodge,  145. 

T.  Inhabitants  &c.  515. 

v.  Kingston,  658. 

Kennedy  ».  Milwaukee  &c.  R.  R.  414. 

v.  Palmer,  67. 

«.  Strong,  78. 

In  re,  612. 

Kennett's  Petition,  456. 

Kenny  t.  Harwell,  510. 

Kent  v,  Somervell,  43. 

Kenyon  e.  Stewart,  347,  610,  613. 

Kerr,  In  re,  443. 

Kerrison  r.  Cole,  341. 

Kesler  r.  Smith,  96. 

Key  T.  Goodwin,  109. 

Keyport  St.  Co.  c.   Farmers'  Trans.  Co. 

204. 

Kibbev  r.  Jones,  612. 
Kimball  v.  Connor,  478,  487,  489. 
Kimberley  v.  Ely,  555. 
Kimbray  v.  Draper,  163. 
Kiuaston  v.  Clarke,  43. 
Kincaid's  A.ppeal,  436. 
King  r.  Adderley,  356. 


TABLE   OF   CASES   CITED. 


XXIX 


King  r.  Allen,  337. 

-  v.  Athos,  43. 

v.  Barbara,  207. 

v.  Birmingham,  73. 

T.  Bishop  of  London,  29. 

v.  Brisac,  65. 

v.  Brooklyn,  96. 

v.  Burrell,  208. 

v.  Cart wright,  39. 

v.  Corsham,  215. 

v.  Course,  141. 

v.  Cumberland,  337. 

v.  Eyre,  377. 

0.  Forrest,  303. 

—  v.  Great  Bentley,  218. 

v.  Harris,  345. 

r.  Hastings,  377. 

v.  Haverstall- Red  ware,  303. 

v.  Hodnett,  204,  282. 

v.  Hogg,  217. 

-  v.  Justices,  106. 

v.  Lacey,  359. 

v.  Marks,  39,43. 

v.  Northfield,  654. 

v.  North  Nibley,  215. 

v.  Peckham,  358. 

0.  Poor  Law  Comnvrs,  207. 

v.  Portland,  427. 

v.  Rainsgate,.  207. 

v.  St.  Gregory,   320. 

v.  Stoke  Denierel,  207. 

v.  W.  &  W.  R.  R.  615. 

—  v.  Worminghall,  358. 

v.  Younger,  215. 

Kingley  r.  Cousins,  615. 

Kingston    &c.  Dock  Co.  v.  La  Marche, 

293. 
Kinney  v.  Beverley,  480. 

v.  Sherman,  617. 

Kirby  0.  Shaw,  158,  425. 
Kirk  v.  Nowill,  25. 

v.  State,  493. 

Kirtland  v.  Molton,  615. 
Kneeland  v.  Milwaukee,  504.  505. 
Knight  v.  Campbell,  490. 

v.  Crockford,  276. 

Knoop  v.  Piqua  Bank,  586. 
Knowlton  v.  Supervisors,  505. 
Knox  v.  Cleveland,  109. 

0.  Hundhausen,  615. 

Knox  Co.  v.  Aspenwall,  430. 
Koch  v.  Bridges,  316. 

v.  Williamsport  &c.  Co.  456. 

Kohlheimer  0.  State,  574. 
Koppicus  T.  Commissioners,  486. 
Koran  v.  Ottawa,  100. 

Korn  v.  Brown,  613. 

Kramer  v.  Cleveland  &c.  R.  R.  464,  467. 

Kuhns  v.  Krammis,  525. 

Kunkle  v.  Franklin,  432. 

Lackland  v.  North  Mo.  R.  R.  457. 


Lacon  v.  Hooper,  358. 

Lsefron  v.  Dufrocq,  424,  530. 

Lafayette  v.  Jenners,  426. 

Lafayette  PI.  R.  v.  New  Albany  &c.  R.  R, 

456. 

Lafayette  &c.  R.  R.  v.  Geiger,  431. 
La  Forge  v.  Magee,  643. 
Lagare  v.  State,  547. 
La  Grange  Co.  v.  Butler,  210. 
Lain  v.  Shepardson,  615. 
Lair  v.  Killmer,  279. 
Lake  v.  Virginia  &c.  R.  R.  291. 
Lake  Erie  &c.  R.  R.  v.  Heath,  404,  486, 

490. 

Lakeman  0.  Moore,  47. 
Lamkin  v.  Sterling,  584. 
Lamond  v.  Eiffe,  208. 
Lancaster  v.  Barr,  645. 
Lancaster  Sav.  Inst.  r.  Peigart,  631. 
Landt  v.  Hilts,  82. 
Lane,  Ex  parte,  659. 

v.  Gary,  374. 

v.  Dorman,  146,  410. 

Laner  v.  State,  526. 
Lang  v.  People,  437. 

r.  Phillips,  357. 

v.  Scott,  30,  344. 

Laugdon  v.  Applegate,  532. 

v.  Litchfield,  516,  599. 

v.  Potter,  265. 

Lange,  Ex  parte,  575. 
Langford  v.  Ramsay  Co.  464. 
Langworthy  v.  Dubuque,  426. 
Lansing  ®.  Caswell,  116. 

0.  Smith,  77,  533. 

Lanzette,  Succession  of,  524. 
Laranque  v.  Stanley,  276. 
Latham  v.  Spedding,  377. 
Lathrop  v.  Mills,  414,  645. 
Latless  v.  Holmes,  65. 
Law  ?'.  Madison  &c.  Co.  426,  428. 
Lawrence  v.  Miller,  168,  582,  602. 

In  re,  581. 

Layton  0.  New  Orleans,  582. 
Leach  v.  Smith,  615. 
Leake  v.  Blasdel,  31. 
Learned  v.  Corley,  226. 
Lease  v.  Vance,  269. 
Leathers  v.  Shipbuilders'  B'k,  614. 
Leathley  v.  Webster,  402. 
Leavenworth  Co.  v.  Miller,  227,  535. 
Le  Coul  v.  Police  Jury,  446. 
Lee  0.  Clark,  334. 
—  0.  Forman,  224. 

0.  Rogers,  27. 

0.  State,  573. 

0.  Tillotson,  88. 

Leeds  &c.  Co.  0.  Hustler,  293. 

Leeds  0.  Manchester  &c.  Canal  Co.  292. 

0.  Summersgill,  43. 

Leese  0.  Clark,  204. 
Leggett  v.  Hunter,  140. 


XXX 


TABLE    OF  CASES   CITED. 


Lehman  v.  McBride,  324,  532. 
Leidenbender  v.  Charles,  71. 
Leigh  «.  Kent,  97. 
Lemons  ».  State,  547. 
Le  Neve  v.  Le  Neve,  276. 
Lenz  v.  Charlton,  437. 
Leoni  v.  Taylor,  203. 
Le  Roy  v.  Chabolla,  210. 
Lessee  of  Good  v.  Zercher,  349. 
Lessee  of  Gordon  v.  Kerr,  385. 
Lester  v.  Garland,  356. 
Levering  v.  Washington,  617. 
Leversee  v.  Reynolds,  200. 
Levi  v.  Milne,  579. 
Levy  v.  Mentz,  368. 
Lewenthal  v.  Mayor,  524. 
Lewin  v.  Stewart,  90. 
Lewis  v.  Commonwealth,  102. 

v.  Labauve,  316. 

• v.  Lewis,  611. 

v.  Stout,  365. 

u.  Webb,  146. 

Lewis  Co.  v.  Hayes,  445. 
Lexington  v.  Long,  446. 

v.  McQuillan's  Heirs,  426,  428, 

433. 

License  Tax  Cases,  508. 
Life  Association  &c.  v.  B'd  of  Assessors, 

317,  505. 

Lindenmuller  v.  People,  14,  512. 
Lindsay  v.  Charleston  Comm'rs,  406. 
Lin  Sing  v.  Washburn,  436. 
Linton  v.  Sharpsburg  &c.  Co.  371. 
Lisbon  v.  Clarke,  96. 
Litchfield  v.  McComber,  429. 

v.  Vernon,  426. 

Little  r.  Gibson,  614,  645. 

Little  Miami  R.  R.  i\  Collett,  466. 

Liverpool  Ins.  Co.  v.  Massachusetts,  504, 

5132. 

Livingston's  Case,  575. 
Livingston  v.  New  York,  433,  471,  490, 

555. 

v.  Van  Ingen,  30,  342. 

Locke  v.  Dane,  170,  654. 

v.  New  Orleans,  506. 

Lockett  0.  Usry,  614. 

Lockhart  c.  Yeiser,  613. 

Lockwood  v.  Crawford,  364. 

Logan  c.  State,  68. 

Lohman  v.  People,  92. 

London  &c.  R.  R.  v.  Limehouse  B'd  of 

Works,  98. 

Long  v.  Fuller,  447,  466. 
Longworth's  Ex'ors  v.  Common  Council, 

535. 

Lonsdale  v.  Brown,  60. 
Looker  v.  Halcomb,  267. 
Looney  «.  Hughes,  316. 
Lopez  v.  Andrew,  95. 
Lord  r.  Chadbourne,  561. 
Lord  Bernard  v.  Saul,  27. 


Loring  v.  Hailing,  358. 
Loughbridge  v.  Harris,  444,  447. 
Louisiana  &c.  PL  R.  v.  Pickett,  464. 
Louisville  &c.  Co.  v.  Ballard,  521,  622. 
Louisville  &c.   R.  R.  r.  Commonwealth, 

372. 
r.     Davidson    Co. 

135,  429. 

Love  v.  Hinckley.  216. 
Lovejoy  v.  Robinson,  200. 

v.  Whipple,  69. 

Lovingston  v.  Wider,  507. 

Low  v.  Galena  &c.  R.  R.  445,  447. 

r.  Marysville,  372. 

v.  Rice,  87. 

Lowe  v.  Waller,  290. 
Lowell  v.  Hadley,  510. 
Lowenberg  v.  People,  574. 
Lucas  v.  Sawyer,  581,  643. 
Lucy  0.  Levingtou,  27. 
Luke  r.  Brooklyn,  432. 

v.  State,  98. 

Lumbard  v.  Stearns,  446,  452. 
Lumsden  ».  Cross,  426,  428. 
Lunesden  v.  Milwaukee,  464. 
Luter  v.  Hunter,  611. 
Lyman  v.  Boston  &c.  R.  R.  608. 

v.  Mower,  145. 

Lyn  v.  Wyn,  104. 
Lynch  v.  Clarke,  13,  29. 

v.  Steamer  "Economy,"  414. 

Lynde  0.  Noble,  275. 

Lyner  v.  State,  67. 

Lyon  v.  Jerome,  331,  442. 

McAfee  v.  Southern  R.  R.  102,  224. 
McArdle,  Ex  parte,  109. 
McArthur  v.  Franklin,  67. 
•McAuley  v.  Western  &c.  R.  R.  465. 
McAunich  v.  Miss.  R.  R.  530,  534. 
McCabe  i\  Emerson,  169. 
McCartee  r.  Orphan  Asylum,  212. 
McCarthy  v.  Brooks,  584. 
McCauley  v.  Brooks,  618. 

v.  State,  495. 

McClung  v.  Ross,  303. 
McClure  v.  Owens,  430. 

v.  Talknan,  373. 

McClusky  v.  Cromwell,  208. 
McCollom,  Ex  parte,  409. 
McComb  v.  Gilkey,  140. 
McCool  v.  Smith,  98,  224. 
McCormackr.  Terre  Haute  &c.  R.  R,  341. 
McCormick  v.  Rusch,  611. 

McCowan  v.  Davidson,  163. 
McCracken  v.  Hayward,  604,   629,    632, 
634. 

v.  San  Francisco,  144. 

McCray  v.  Junction  R.  R.  619. 
McCulloch  v.  State,  54,  55,  408,  412.  ^s~ 
McCutcheon  v.  Stewart  Co.  73. 
McDonald  v.  Redwing,  455. 


TABLE   OF  CASES  CITED. 


XXXI 


McDonald  r.  Schell,  497. 

v.  Stewart,  615. 

McDonough  v.  Campbell.  98. 

McDougull  v.  Patterson,  220,  377. 

McElvain  v.  Mudd,  619. 

McEwen  v.  Montgomery  Ins.  Co.  374. 

McFarland  ».  Butler,  612. 

McGear  v.  Woodruff,  491. 

McGee  v.  Mathis,  427,  586. 

Mclutyre  v.  Ingraham,  225,  360,  372,  619. 

Mclver  «.  Ragan,  263,  277. 

McKean  v.  Delancy's  Lessee,  368. 

McKeen  v.  Delaware  &c.  Co.  457. 

McKenney  v'.  Cornpton,  585,  613. 

McKenzie  v.  State,.  574. 

McKibbin  v.  Lester,  110. 

McKnight  v.  Crinnion,  229. 

McKorkle  v.  State,  574. 

McKune  v.  Weller,  316,  317. 

McLanahan  r.  Universal  Ins.  Co.  579. 

McLaughlin  i\  Hoover,  209. 

McMahon  v.  Cincinnati  &c.  R.  R.  212. 

McMauning  v.  Farrar,  162. 

McMaster  v.  Commonwealth,  433,  471. 

McMillen  v.  McNeill,  613. 

McMillin  «.  Boyles,  143. 

McNair  v.  Raglancl,  116. 

McNamara  v.  Minn.  R.  R.  163,  200,  229. 

McNealy  v.  Gregory,  616. 

McPherson  v.  Cunfiff,  300. 

i\  Leonard,  52,  539. 

McRoberts  v.  Washburn,  31,  539. 

McSpedon  v.  Stout,  542. 

McVeigh  v.  Chicago.  505,  506,  507. 

Mace  v.  Cushman,  224. 

Mack  v.  Jones,  501. 

Maclay  v.  Love,  414,  644. 

Macy  v.  Raymond,  221. 

Maddox  v.  Graham,  100,  430. 

Madison  &c.  R.  R.  v.  Whiteneck,  530,  535. 

Madison  &c.  PI.  R.  v.  Reynolds,  354. 

Madison  Co.  Bank  v.  Gould,  315. 

Magee  v.  Young,  581. 

Maggs  v.  Hunt,  111. 

Magruder  r.  State,  98. 

Maguire  v.  Maguire,  612. 

Mahala  v.  State,  496,  574. 

Mahon  v.  N.  Y.  Cent.  R.  R.  458. 

Maine  B'k  v.  Butts,  373. 

Maize  t?.  State,  136,  138,  414. 

Major  v.  State,  575. 

Malchus  v.  Dist.  of  Highlands,  427. 

Malcolm  v.  Rogers,  378. 

Mallory  v.  Hiles,  67. 

Maloney  v.  Fortune,  616. 

Maloy  v.  Marietta,  428. 

Maltby  v.  Reading  R.  R.  509,  609. 

Maltus  v.  Shields,  426. 

Manlove  v.  White,  108. 

Manly  v.  State,  413. 

Mann  v.  Eckford,  171. 

Manners  v.  Blair,  117. 


Mansfield  &c.  R.  R.  r.  Clark,  446. 

Manuel  v.  Manuel,  209. 

Maple  Lake  v.  Wright,  102. 

Marbury  r.  Madison,  182,  406. 

Marchant  v.  Langworthy,  321. 

Marcy  v.  Indianapolis,  456. 

Margate  Pier  Co.  v.  Hannam,  256,  257. 

Mark  v.  State,  55. 

Markham  v.  Brown,  452. 

Marriott  v.  Shaw,  336. 

Mars,  the,  78. 

Marsh  r.  Putnam,  606,  622,  623. 

Marshall  v.  Guion,  403. 

v.  Vultee,  312. 

Martin  v.  Broach,  530. 
v.  Ford,  281. 

v.  Hewitt,  526,  562,  585. 

v.  Hunter's  Lessee,  221,  367,  551T 

552. 

v.  Mott,  556. 

v.  O'Brien,  540. 

t>.  Payne,  94,  95. 

r.  Snowden,  477,  478,  558. 

0.  Somerville  &c.  Co.  633. 

v.  State,  161,  337,  372,  560. 

— —    r.  Waddell,  369,  389,  390. 

Martindale  v.  Martindale,  365. 
Martinsville  v.  Freize,  530. 
Mason  v.  Feelwood,  27. 

v.  Haile,  113,  625,  633. 

v.  Lancaster,  436. 

0.  Messinger,  476. 

r.  Waite.  549,  657. 

Massie  v.  Watts^  390. 

Master  of  St.  Cross  v.  Lord  de  W aid  en, 

217. 

Master  of  Vintner's  Co.  ®.  Passey,  397. 
Mather  v.  Chapman,  641. 
Matheson  «.  Hearin,  228. 
Mathews  v.  Zane,  67. 
Matthews  v.  Sands,  227,  229. 

0.  Shores,  227. 

Maus  v.  Commonwealth,  355. 

v.  Logansport  &c.  R.  R.  111. 

May  v.  Holdridge,  143. 

r.  Milwaukee  &c.  R.  R.  493. 

Mayer,  Matter  of,  524,  529. 
Mayers  v.  Byrne,  143. 
Maynes  v.  Moor,  610. 
Mayo  v.  Wilson,  474. 
Mayor  v.  Bailey,  446. 

v.  Brittain,  600. 

r.  Cunliff,  331. 

v.  Dechert,  414. 

v.  Furze,  331,  377. 

r.  Greenmont  Cemetery,  261. 

v.  Harwood,  55. 

v.  Horn,  142. 

v.  Homer,  95. 

f.  Long,  466. 

r.  Lord,  314.  -396. 

v.  Norwich  &c.  R.  R.  620. 


XXX11 


TABLE   OF   CASES    CITED. 


Mayor  p.  Ohio  &  Penn.  R.  R.  294. 

v.  Root,  261. 

p.  Second  Av.  R.  R.  608. 

„.  State,  143,  522. 

p.  Tows,  583. 

P.  Winter,  225,  372. 

Mayor  of  New  York,  In  re,  261. 
Maysville  Turnp.  Co.  P.  How,  291. 
Maxey  v.  Bell,  512. 

v.  Loyal,  612,  613. 

Maxwell  v.  Collins,  200. 
Meacham  ».  Fitchburg  R.  R.  472. 
Mead  v.  Bagnall,  56,  99. 

T,  Walker,  494. 

Mechanics'  Bank  Appeal,  49,  610,  644. 

Mechanics  &  Traders'  B'k  P.  De  Bolt,  586. 

Mede  v.  Hand,  610,  612. 

Medfordr.  Learned,  348. 

Medical  Coll.  v.  Muldon,  532. 

Melody  P.  Reab,  282. 

Memphis  Freight  Co.  r.  Memphis,  447, 

448,  449. 

Menges  v.  Dentler,  142. 
Mercer  Co.  v.  Hackett,  430. 
Merchant  p.  North,  331. 
Merchants'  B'k  r.  Cook,  221. 
Merrick  v.  Amherst,  431. 
Merritt  p.  Farris,  505. 
Merry  field  i\  Jones,  578. 
Merville  r.  Townsend,  370. 
Meserole  v.  Mayor,  538. 
Meshmaier?'.  State,  110,  136,  414. 
Mestrader  P.  Gillespie,  33. 
Metropolitan  B'd  of  Excise  v.  Barrie,  436, 

584. 

Metzger,  Matter  of,  556. 
Mewherter  v.  Price,  526. 
Meyer  v.  Muscatiue,  430. 
Meyers  v.  Johnson  Co.  430. 
Micou  P.  Tallassee  Bridge  Co.  607. 
Middlesex  Turnp.  Co.  v.  Lock,  362. 
Miffin  v.  Railroad  Co.  460. 
Milan  &c.  PL  R.  v.  Husted,  586. 
Miles'  Will,  In  re,  161. 
Miles  P.  State,  101. 
Milford  v.  Orono,  316. 

p.  Worcester,  73. 

Milhau  v.  Sharp,  398,  538. 
Millburn  v.  Cedar  Rapids,  459. 
Miller  v.  Craig,  429,  447,  467. 

p.  Frost,  447. 

r.  Gibson,  139. 

P.  Graham,  144. 

r.  Jones,  227. 

v.  Miller,  653. 

p.  Moore,  617. 

p.  State,  539,  548,   559,   573,  588, 

621. 

Miller's  Case,  111. 
Mills  v.  Charleton,  506,  530. 

p.  Collett,  82. 

v.  Duryee,  63,  562. 


Mills  P.  St.  Clair,  25,  293,  296,  600. 

v,  Sargent,  414. 

v.  State,  102. 

p.  Wilkins,  39. 

Milwaukee  &c.  R.  R.  v.  Supervisors,  504. 
Milwaukee  v.  Milwaukee,  583. 
Minor  v.  Mechanics'  B'k,  377. 
Minot  P.  Philadelphia  &c.  R.  R.  228. 
Mississippi  Soc.  v.  Musgrove,  585,  619. 
Mitchell  P.  Brown,  100. 

p.  Burlington,  618. 

v.  Duncan,  100,  210,  375. 

p.  Harmony,  577,  579. 

0.  Smith,  71. 

v.  Williams,  436. 

Mitford  v.  Elliott,  47. 

Mobile  &c.  R.  R.  P.  Malone,  226. 

p.  State,  99,  413,  620. 
Mobile  School  Comm'rs  P.  Putnam,  52. 
Mochlan  Township  Road,  183. 
Moers  v.  Reading,  395,  412,  434. 
Mohney  v.  Cook,  341. 
Molett  P.  State,  437. 
Moncrief  c.  Ely,  344. 
Money  p.  Leach,  571. 
Mouongahela    Nav.    Co.   p.  Coons,  455, 

460. 

Monroe  P.  Douglass,  13. 
Montague  v.  Smith,  278. 
Montgomery  v.  Kasson,  585,  586. 

p.  State,  579. 

Moody  P.  Stephenson,  354. 
Mooers  P.  Bunker,  365. 
Moon  P.  Durden,  164. 
Moore  P.  Amer.  Trans.  Co.  372. 

'p.  Fowler,  629. 

p.  Houston,  358. 

v.  Mansert,  110. 

p.  Mayor,  602,  603. 

v.  Moore,  508. 

v.  New  York,  442. 

r.  People,  570. 

p.  State,  608. 

Moreau  v.  Detchmendy,  582. 
Morehouse  p.  Crilley,  90,  335. 
Morey  v.  Brown,  455. 
Morford  v.  Barnes,  491,  497. 

p.  linger,  56,  426,  522. 

Morgan  v.  Curtenius,  367. 

— —    P.  Lesler,  660. 

v.  Momnouth  PL  R.  136,  509. 

v.  Reed,  141,  613. 

v.  Smith,  111,  227,  532. 

v.  State,  573,  574. 

Morris  p.  Morris  Co.  429. 

r.  People,  80,  398,  409. 

Morris  &c.  R.  R.  r.  Newark,  458. 
Morrissey  P.  People,  574. 
Morrison  P.  Underwood,  87. 
Morse  P.  Gould,  610,  634. 

0.  Stocker,  429,  457,  459. 

Morton  P.  People,  547. 


TABLE   OF  CASES  CITED. 


XXX111 


Morton  0.  Valentine,  610. 

Moseley  0.  State,  573. 

Moses  v.  Pittsburg  &c.  R.  R.  459. 

Moss  v.  Comm'rs,  264. 

Mott  ».  Penn.  R.  R.  586. 

v.  U.  8.  Trust  Co.  73. 

Mount  v.  Commonwealth,  574. 

v.  State,  496. 

Mount  Pleasant  v.  Clutch,  546. 

Mount  Washington  R.  R.  In  re,  447.  456, 

464,  467. 

Mountfort  v.  Hall,  497. 
Mouras  0.  The  A.  C.  Brewer,  109. 
Mourilyan  v.  Labalmondiere,  372. 
Mouys  0.  Leake,  341. 
Mullen  v.  People,  100. 
Mulligan  0.  Hintrager,  478. 
Muudy  v.  Monroe,  616. 
Municipality  No.  1  v.  Wheeler,  214,  346, 

348. 

Municipality  No.  2  0.  White,  434. 
Munn  v.  Pittsburg,  494. 
Murchison  v.  McNeil,  506. 
Murphy  v.  Commonwealth,  496. 

V.  Menard,  41,  527. 

v.  People,  491,  497,  555. 

v.  State,  547. 

Murphy  &  Glover,  Matter  of,  557. 
Murray  v.  Askew,  497. 

v.  Baker,  260. 

v.  Gibson,  168. 

0.  Menefee,  456. 

v.  Reeves,  70. 

r.  Sharp,  457. 

Murray's  Lessee  v.  Hoboken  &c.  Co.  577. 
Muscogee  R.  R.  v.  Neal,  102. 
Musselman  v.  Logansport,  143. 
Myers  v.  Copeland,  109. 

0.  Dodd,  437. 

v.  Gemtnell,  10. 

Myrick  v.  Battle,  589. 

Napa  Valley  R.  R.  v.  Napa  Co.  430. 
Nashville  v.  Towns,  506^  644. 
Naugatuck  &c.  R.  R.  v.  Waterbury  &c. 

Co.  494. 
Nay  lor  v.  Field, 
Naz.  Lit.  &  Benev.  Inst.  v.  Commonwealth, 

211,  353. 

Nazro  v.  Mer.  Ins.  Co.  354. 
Neass  ».  Mercer,  614. 
Ned,  The,  559. 
Ned  v.  State,  495. 
Neeley  v.  McFadden,  615. 
Neenan  v.  Smith,  228,  429.   . 
Neifing  v.  Pontiac,  522. 
Nellis  -o.  Clark,  69. 
Nelson  v.  Allen,  215,  596. 

0.  People,  413,  554. 

0.  Rountree,  142,  615. 

Nerot  v.  Wallace,  70. 
Nesbit  0.  Trumbo,  448. 

c 


Nesmith  0.  Sheldon,  368. 

Neville  r.  State,  225. 

New  Albany  &c.  R.  R.  0.  McNamara,  617. 

v.  O'Dailey,  457. 

Newark  City  Bank  0.  Assessors,  507. 
New  Bedford  &c.  Turn  p.  Co.  0.  Adams, 

343. 

Newbury  Turnp.  Co.  0.  Miller,  378. 
Newby  v.  Platte  Co.  466,  467. 
Newcastle  &c.  R.  R.  0.  Peru  &c.  R.  R.  443. 
Newcomb  v.  Butterfield,  334. 

«.  Smith,  447. 

Newell  0.  People,  70,  208,  409. 

v.  Smith,  466. 

v.  Wheeler,  269. 

New  Haven  v.  Whitney,  31. 
Newkirk  0.  Chapron,  614. 
Newland  0.  Marsh,  478. 
Newman  v.  Justices,  506. 
Newman,  Ex  parte,  54,  512,  520. 
New  Orleans  0.  Cannon,  481. 

0.  Cordeviolle,  346. 

0.  Graihle,  395,  454,  540. 

0.  Holmes,  68,  616.  ' 

0.  Turpin,  503,  504,  587. 

r.  U.  S.  390,  440. 

New  Orleans,  Matter  of,  427. 

New  Orleans  Nav.  Co.  v.  N.  O.  620. 
New  Orleans  Slaughter  House  &c.  Co.  0. 

Crescent  City  &c.  Co.  564. 
Newson  0.  Cocke,  411. 
New  York  Cent.  R.  R.  0.  Kip,  296,  445, 

447,  472. 

New  York  &  Erie  R.  R.  0.  Young,  457. 
New  York  Fire  Dep.  0.  Butler,  371. 
Nichols  0.  Bridgeport.  426,  433,  466,  467. 

0.  Halliday,  227. 

0.  Squire,  105,  334,  366. 

Nicholson  0.  Leavitt,  73.    ' 

0.  N.  Y.  &  N.  H.  R.  R.  466. 

Nightingale,  Ex  parte,  477. 
Nixon  0.  Hyserott,  330. 
Noble  0.  Durell,  217. 

0.  Hook,  614. 

Noel  0.  Erving,  581. 

0.  Ewing,  162. 

Noland  v.  Costello,  532. 
Norman  v.  Heist,  349. 
Norris  v.  Boston,  415. 
v.  Clymer,  412. 

v.  Crocker,  111. 

0.  Doniphan,  559. 

0.  Harris,  12. 

0.  State,  547. 

v.  Thompson,  644. 

Norristown&c.  R.  R.  r.  Burkett,  464,  491. 
North  Bridgewater  B'k  0.  Copeland,  161. 
North  Hempstead  v.  Hempstead,  390. 
North  Mo.  R.  R.  v.  Gott,  445. 

0.  Lackland,  445. 

0.  Maguire,  609. 
North  Penn.  &c.  Co.  0.  Snowden,  489. 


XXXIV 


TABLE    OF   CASES   CITED. 


J 


North  Perm.  R.  R.  r.  Davis,  442. 
Northern  R.  R.  «.  Connelly,  427. 

r.  Miller.  75. 

Northern  Cent.  R.  R.  ®.  Jackson,  509. 
Northern  Ind.  R.  R.  v.  Milliken,  533. 
Norton  0.  McLeary,  490. 

v.  Petti  bone,  641. 

Norval  0.  Rice,  493. 

Norwich  Gas  L.  Co.  0.  Norwich  C.  Gas 

Co.  540. 

Notley  v.  Buck,  206. 
Nugent  v.  State,  574. 
Nunnally  0.  White,  228. 

Oakland  v.  Carpenter,  54. 
Oakley  v.  Aspen  wall,  87,  412. 
Oatman  v.  Bond,  414,  616. 
O'Bannon  0.  Louisville  &c.  R.  R.  613. 
O'Brien  ®.  State,  269,  573. 
O'Connor  0.  Pittsburg.  461. 
O'Donnell  v.  Bailey,  586. 

v.  Kelsey,  391,  392. 

v.  Sweeney,  69. 

Officer  v.  Young,  146. 

Ogden  v.  Saunders,  551,  552,  554,  556, 

613. 

O'Hanlon  v.  Myers,  56. 

Ohio  v.  Stunt,  296. 

Ohio  &c.  R,  R,  0.  McClelland,  588,  607. 

Ohio  Life  Ins.  &  T.  Co.  v.  De  Bolt,  595, 

598. 

O'Kane  v.  Treat,  505. 

Olcott  v.  Robinson,  305. 

v.  Supervisors,  610. 

Old  Colony  R.  R.  v.  Plymouth,  459. 
O'Leary  0.  County  of  Cook,  521. 
Oliver*.  Washington  Mills,  317,  510,  563. 
Oliver  Lee  &  Co.'s  B'k,  In  re,  622. 
Olmstead  v.  Camp,  447. 

v.  Elder,  302,  657. 

Omit  v.  Commonwealth,  69,  98. 
O'Neil  v.  Glover,  492. 

Opinion  of  Justices  (X.  H.)  56,  493. 
(Me.)      432,  602. 

O'Reilly  r.  Kankakee  Drain  Co.  454. 
Oriental  Bank  0.  Freeze,  169,  655. 
Ormsby  Co.  v.  State,  225. 
Orton  v.  Noonan,  142. 
Osborn  v.  Hart,  448. 

v.  Humphrey,  511,  599. 

v.  Jaines,  613. 

v.  State,  493. 

v.  United  States  B'k,  538. 

Osgood  v.  Breed,  259. 

Oster  v.  Rabeneau,  270. 
Ottawa  v.  People,  520. 

v.  Spencer,  427. 

Our  House  v.  State,  436. 
Overfield  v.  Sutton,  229. 
Oviatt  v.  Pond,  455. 
Owen  r.  Slater,  357. 
Owings  v.  Speed,  581. 


Pacific  R.  R.  T.  Chrystal,  466,  467. 
Packard  v.  Richardson,  214. 
Packer  v.  Commonwealth,  136,  137. 

v.  Sun  bury  &c.  R.  R.  292,  353. 

Pacquitte  v.  Pick  ness,  645. 

Pacldon  v.  Bartlett,  114. 
Page  v.  Allen,  418. 

v.  Mathews,  613. 

v.  Plaice,  259. 

Pagett  v.  Curtiss,  13. 

v.  Foley,  104. 

Paine  v.  Lake  Erie  &c.  R.  R.  56. 

0.  Spratley,  292,  426. 

Palairet's  Appeal,  448,  609. 
Palmer®.  Conly,  79,  115. 

v.  Lawrence,  73. 

v.  Stumph,  426. 

v.  York  Bank,  334. 

Palmer,  Matter  of,  645. 
Palmyra  v.  Merton,  427. 
Paris  Township  v.  Cherry,  136. 
Parish  v.  Eager,  613. 

Parish  of  Boss-ier  *.  Steele,  526. 
Parker  v.  Commonwealth,  137. 

v.  Foote,  9. 

0.  Metropolitan  R.  R.  620. 

v.  Overman,  804. 

«.  Redfield,  511. 

v.  Shannon  House,  614. 

Parkinson  0.  State,  201,  225,  525,  540. 
Parmelee  v.  Lawrence,  644. 

0.  Thompson,  44,  146,  365,  373. 

Parmiter  v.  Coupland,  579. 

Parry  «.  Croydon  &c.  Co.  101. 
Parsons  v.  Bedford,  552,  577,  578. 

v.  Carey,  615. 

0.  Chamberlain,  358. 

0.  Payne,  161. 

0.  Russell,  477. 

Parton  v.  Hervey,  73. 
Partridge  v.  Naylor,  79. 
Paschal  v.  Perez,  610. 
Paterson  v.  Society  &c.  657. 
Patin  v.  Prejean,  626. 
Pattee  T.  Greeley,  69. 
Patterson  v.  Barlow,  418. 

0.  Jenks,  390. 

v.  Philbrook,  120,  654. 

v.  Winn,  7,  390. 

Pattison  0.  Banks,  45. 

0.  Tuba,  430. 

Paul  0.  Carver,  461. 

0.  Virginia,  504,  562. 

Paull  0.  Lewis,  217. 
Paup  0.  Drew,  596. 
Pajne  0.  Tread  well,  143. 
Peabody  0.  Hayt,  334. 
Pearce  0.  B'k  of  Alabama,  99. 

0.  B'k  of  Mobile,  49. 

0.  Hitchcock,  93. 

Pearson  0.  Isles,  75. 

0.  Lovejoy,  312. 


TABLE    OF  CASES  CITED. 


XXXV 


Pease  0.  Morrice,  259. 

v.  Peck,  370. 

v.  Whitney,  354. 

Peck  0.  Weddell,  137. 
Pegram  0.  Carson,  372. 
Peirce  0.  Boston,  502. 
Pel  ham  0.  Messinger,  296. 
Pell  v.  Ultnan,  657. 
Pellicat  i).  Angel,  339. 
Pembroke  0.  Epsom,  31,  643. 
Pennington  v.  Tpwnsend,  69. 
Pennock  v.  Dialogue,  363. 
Pennsylvania  College  Cases,  621. 
Pennsylvania  R.   R.   v.   Canal  Comm'rs, 
294. 

v.  Casey,  632. 

v.  Lutheran  Cong. 
464. 

v.  Riblet,  437. 
Penrice  v.  Wallis,  465,  467. 
Penrose  v.  Erie  Canal  Co.  610,  616,  619. 
People  v.  Adams,  65. 

i).  Admire,  56. 

v.  Alameda,  140. 

v.  Albany,  397. 

0.  Alleghany  Co.  82. 

0.  Allen,  92,  321,  521,  539. 

v.  Auditor,  586. 

0.  Auditor  General,  504. 

0.  Barr,  98. 

—  v.  Barrett,  496. 

-  0.  Barstow,  283. 

0.  Barton,  507. 

-  v.  Batchellor,  430,  584. 

v.  Bennett,  524. 

-  v.  Berberrich,  50,  126,  481,  497. 

v.  Board  of  Education,  267. 

v.  Bond,  583. 

v.  Bowen,  56,  535,  540. 

0.  Bradley,  507. 

-  0.  Brady,  566. 

-  v.  Brooklyn,   158,  261,   425,  426, 

428,  433. 

-  0.  Brooks,  81,  335. 

-  0.  Burns,  201. 

-  ®.  Carnal,  168. 

-  v. .Carpenter,  613. 

-  0.  Carroll,  491,  492,  494. 

v.  Chautauqua  Co.  529. 

0.  Chenango  Co.  324. 

v.  Chicago,  506,  507. 

-  v.  Church  of  the  Atonement,  371. 

-  v.  Clute,  355. 

-  0.  Coleman,  503,  562. 

-  0.  Collins,  137. 

-  0.  Commissioners,507,520,523,584. 
0.  Commissioners  of  Taxes,  587. 

0.  Compton,  402. 

v.  Comstock,  573. 

v.  Cook,  322,  573,  574. 

0.  Coon,  620. 

0.  Cooper,  331. 


People  0.  Dana,  204,  230,  280. 

0.  Daniel,  476,  492. 

0.  Davis,  108. 

0.  Denton,  496. 

0.  Devlin,  55,  56. 

0.  Dibble,  477. 

0.  Doe,  323. 

0.  Dorr,  508. 

0.  Draper,  582. 

0.  Duffy,  497. 

v.  Durick.  102. 

0.  Eddy,  229. 

0.  Edmunds,  139. 

0.  F.  &  B.  PI.  R.  Co.  584. 

0.  Flagg,  446,  583. 

0.  Flemming,  278. 

0.  Gallagher,  436. 

r.  Gates,  508. 

0.  Gerke,  102,  505. 

0.  Gilbert,  84. 

0.  Gilmore,  575. 

r.  Glum,  548. 

0.  Goodwin,  491,  573. 

0.  Green,  413. 

0.  Greer,  111. 

v.  Grippen,  102. 

v.  Hadden,  272. 

0.  Hatch,  58,  356. 

v.  Haws,  494,  506. 

-  0.  Hayden,  465,  468,  469. 

0.  Hennesey,  379. 

v.  Henshaw,  429. 

0.  Herkimer  C.  P.  171. 

0.  Highway  Comm'rs,  418. 

0.  Hill,  413,  426,  582. 

v.  Hills,  520,  525,  527,  529,  621. 

0.  Hoffman,  297,  507. 

v.  Holley,  321,  323. 

0.  Hulse,  333,  378. 

0.  Hussey,  508. 

0.  Imlay,  563. 


0.  Ingham  Co.  31,  143,  418. 

v.  Jackson,  209. 

0.  Jackson,  &c.  Co.  437,  607,  608. 

0.  Johnson,  67. 

0.  Jones,  548. 

0.  Kelly,  96. 

0.  Kerr,  459. 

v.  Kimball,  463. 

0.  King,  226,  355,  494. 

0.  Krammer,  575. 

0.  Lake  Co.  316. 

0.  Lambier,  295. 

0.  Lane,  490. 

0.  Law,  ,143,  465,  509. 

0.  Lawrence,  520,  523. 

0.  Lemmon,  62,  568. 

».  Livingston,  116,  643,  651. 

0.  McCallura,  520,  532. 

0.  McCann,  529. 

0.  McCreery,   142,  316,  414,  503, 

505. 


XXX  VI 


TABLE  OF  CASES   CITED. 


People  0.  McGowan,  573. 

v.  McNealy,  574. 

0.  Mahaney,  102,  522,  532,  554. 

0.  Mariposa  Co.  142. 

0.  Mauran,  390.  391. 

0.  Mayor,  443,  533. 

v.  Muigham,  74. 

0.  Mellen,  520,  527. 

0.  Michigan  So.  R.  R.  465. 

•».  Mitchell,  74,  617. 

'  «.  Moores,  81. 

0.  Moringe,  509. 

v.  Morris,  533,  600. 

0.  Murray,  88. 

0.  Nearing,  447,  467. 

0.  New  York,  102,  358,  608. 

•».  O'Brien,  523,  528,  529. 

v.  Olcott,  496. 

v.  Olwell,  574. 

0.  Onondaga,  355. 

0.  Payne,  92. 

0.  Peck,  321. 

0.  Pinckney,  582. 

0.  Platt,  128,  594. 

0.  Powers,  582. 

0.  Price,  579. 

0.  Purdy,  55. 

0.  Queens  Co.  82. 

0.  Rathbun,  65. 

v.  Rochester,  316,  525. 

0.  Rossiter,  327. 

0.  Ruggles,  14. 

v.  Runkel,  310,  321. 

0.  Rynders,  92. 

v.  Salem,  430. 

0.  Salomon,  135,  507. 

0.  San  Francisco,  317. 

0.  San  Francisco  &c.  R.  R.  102, 

267. 

0.  Saundere,  575. 

0.  Schermerhorn,  322,  390,  391. 

v.  Schoonmaker,  204,  332. 

0.  Seymour,  143. 

0.  Shepard.  54. 

v.  Sheperd,  592. 

0.  Smith,  445. 

0.  Solomon,  506. 

0.  Starne,  55. 

0.  State  Auditors,  643. 

0.  Stearne,  539. 

0.  Stephens.  529. 

0.  Stone,  573. 

0.  Stout.  137. 

0.  Supervisors,  129,  139,  162,  348, 

509. 

—  0.  Syttle,  100. 

0.  Taylor,  374. 

—  0.  Tiphaine,  110,  414. 

—  0.  Turner,  437. 
-   0.  Tyler,  573. 

0.  Utica  Ins.  Co.  197,  256,  315. 

0.  Vanderbilt,  583. 


People  0.  Washington,  566. 

0.  Webb,  573. 

0.  Whyler,  427. 

0.  Williams.  296,  467. 

v.  Woods,  583. 

0.  Worthington,  373. 

Peoples'  Bank  0.  Paterson  Sav.  B'k,  230. 
Peoria  0.  Kidder,  429. 
Perdue  0.  Ellis,  436. 
Perkins  0.  Milford,  432. 

v.  Perkins,  209,  268. 

0.  Thornburgh,  31. 

Perrin  v.  Oliver,  621. 
Perry  0.  Glass,  229. 

Peru  &c.  R.  R.  v.  Bradshaw.  102. 
Pervear  v.  Commonwealth,  508. 
Peterrnan  v.  Ruling,  540. 
Peters  0.  Iron  Mt.  R.  R.  608. 

0.  St.  Louis  &c.  R.  R.  617. 

Peterson  0.  Ternley,  465. 

Pharis  0.  Dice,  615. 

Philadelphia  v.  Commonwealth,  88. 

v.  Field.  426,  582. 

0.  Fox,  582. 

Philadelphia  Association  i\  Wood,  425r 

562. 
Philadelphia  &  Trenton  R.  R.  •».  Stimp- 

son,  390. 
Philadelphia  &c.  R.   R.  0.  Catawissa  R. 

R.  213,  225,  227,  371. 
Philadelphia  &c.  R.  R.  0.  Maryland,  599. 

Matter  of,  458. 
Philbrick  0.  Philbrick,  614. 
Philbrook  0.  Handley,  333. 
Phillips  v.  Albany,  430,  521,  530. 

0.  Covington  Bridge  Co.  521. 
0.  Mayor,  529. 
t>.  New  York,  522,  530. 
Phillips'  Case,  375. 

Phosmx  Ins.  Co.  v.  Commonwealth,  562. 
Phyfe  v.  Einer,  88. 
Piatt  v.  People,  430. 
Pick  0.  Rubicon  &c.  Co.  589. 
Pickup  0.  Wharton,  164. 
Pierce  0.  Delarnater,  107. 

v.  Kimball,  26. 

0.  State,  579. 

Pierpont  0.  Crouch,  101,  520. 

v.  Graham,  357. 

Pike  v.  Jenkins,  283. 
0.  Megoun,  227. 


Pilkington  v.  Green,  88. 

Pillow  v.  Brown,  619. 

Pingree  0.  Snell,  365. 

Pinkham  v.  Dorothy,  296. 

Finns  0.  Nicholson,  520. 

Piper's  Appeal,  426. 

Piscataqua  Bridge  0.  N.  H.  Bridge,  443r 

595,  639. 
Pitt  v.  Shew,  357. 
Pittsburg  0.  First  Nat.  B'k,  507. 
0.  Scott,  469. 


TABLE   OF   CASES   CITED. 


XXXV11 


Pittsburg  &c.  R.  R.  v.  Methven,  280. 
Plank  Road  0.  Thomas,  452. 
Planters'  B'k  v.  Sharp,  631,  632. 
Platenius  v.  State,  584. 
Plato  v.  People,  491. 
Pleasant  v.  Kost,  505. 
Plcasants  v.  Rohrer,  G13. 
Plimpton  v.  Somerset,  487,  490,  494. 
Plum  v.  Morris  Canal  Co.  457. 
Plumb  v.  Sawyer,  169. 
Plummer  v.  Plummer,  227. 
Police  Comm'rs'B.  Louisville,  582. 
Police  Jury  v.  Cochran,  504. 

v.  Colomb,  530. 

0.   McDonough's   Succession, 

434.  540. 

Folk's  Lessee  v.  Wendell,  368,  390. 
Pollard  v.  Dwight,  390. 

0.  Hagan,  440. 

Pomeroy  v.  Chicago  &c.  R.  R.  458. 
Pond  0.  Maddox,  355. 

—    v.  Negus,  321. 
Ponder  v.  Graham,  602. 
Pope  v.  Macon,  478. 
Porter  v.  Aldrich,  371. 

v.  Mariner,  644. 

0.  Thompson,  526. 

Portis  v.  Parker,  581. 
Portland  v.  Stock,  532. 
Portland  Bank  v.  Apthorp,  508. 

v.  Maine  B'k,  357. 
Portland  &c.  R.  R.  v.  Grand  Trunk  R.  R. 

617. 

Portsmouth  Float.  B'dge  Co.  v.  Nance,  293. 
Portsmouth  Livery  Co.  0.  Watson,  25. 
Potter  0.  Bank  of  Ithaca,  73. 

0.  Sturdivant*  655. 

Potts  v.  N.  J.  Arms  Co.  589. 
Poughkeepsie  &c.  R.  R.,  In  re,  466. 
Powell  0.  Sammons,  607. 

0.  Tuttle,  302,  303. 

Powers  0.  Barney,  100,  288. 

0.  Bears,  464. 

0.  Bergen,  127,  128, 130,  149,  150. 

0.  Shepard,  210. 

0.  Wood  Co.  426. 

Powers,  In  re,  80,  497. 

Pratt  0.  Atlantic  &c.  R.  R.  98. 

—  0.  Brown,  447. 

—  0.  Donovan,  437. 
Prentiss  0.  Danaher,  227. 
Presbrey  0.  Williams.  357. 
Presbyterian  Church  v.  N.  Y.  600,  601. 
Presbyterian  Soc.  0.  Auburn  &c.  R.R.  458. 
Prescott  0.  Illinois  &c.  Canal,  55,  56. 

0.  State,  491. 

President  0.  Chapman,  374. 

0.  State,  427. 

Preston  0.  Blackburn,  162. 

0.  Drew,  169. 

Pretty  0.  Solly,  360,  373. 
Pretty  man  v.  Supervisors,  431. 


Price  c.  Hopkin,  613. 

—  v.  State,  574. 

—  0.  Thompson,  459. 

—  0.  Whitman,  356. 
Priestley  ».  Fould,  293. 
Priestnian  v.  U.  S.  265,  332. 
Prigg  0.  Commonwealth,  570. 
Pritz,  Exparte,  535. 

Prize  Cases,  559. 

Proprietors  &c.  0.  Laboree,  169,  643. 

Prosser  ».  Secor,  82. 

Prot.  Epis.  School,  Matter  of,  161,  584. 

Protho  «.  Orr,  530. 

Protzman  0.  Indianapolis  &c.  R.  R.  457. 

Providence  B'k  0.  Billings,  292,  501,  599, 

681. 

Provident  Inst.  0.  Boston,  510. 
Puckle  v.  Moor,  27. 
Pullan  0.  Kinsinger,  477. 
Pulliam  0.  Sewall,  612. 
Pullman  0.  Mayor,  529. 
Pumpelly  0.  Green  Bay  Co.  455,  457. 
Purczell  0.  Smith,  418. 
Purdy  0.  People,  55,  80,  381,  398,  533. 
Purgey  v.  Washburn,  53. 
Putnam  0.  Longley,  265. 
0.  Ross,  270. 

Quackenbush  0.  Danks,  634. 
Queen  v.  Champneys,  99. 

—  0.  Doubleday,  360. 

—  0.  Durham,  318. 

—  0.  Eastern  Counties  B'k,  462. 

—  0.  Edmundson,  360. 

—  0.  Lancashire,  264. 

—  0.  Leeds,  278. 

—  v.  Matthews,  336. 
Quigley  v.  Gorham,  225,  373. 
Quimby  0.  Carter,  333. 
Quinebaug  B'k  0.  Leavens,  359. 
Quinlan  0.  Rogers,  414. 

Radcliff's  Ex'ors  0.  Mayor,  459. 
Rader  0.  Road  District,  614.        * 
Rafe  0.  State,  493. 
Railway  Co.  0.  Davis,  131. 

0.  Gregory,  530. 

0.  McClure,  606. 

Raleigh  &c.  R.  R.  0.  Reed,  586. 
Ralston  0.  Lothain,  347. 
Ramsay  0.  Foy,  224. 

0.  Gould,  280. 

Randolph  0.  Good,  558. 
Rathbun  0.  Acker,  305. 
Ratzky  0.  People,  560. 
Raudebaugh  0.  Shelley,  100. 
Rawley  0.  Hooker,  616. 
Rawson  0.  Rawson,  98. 
Raynham  0.  Canton,  364. 
Rea  ».  McEachron,  300. 
Ream  0.  Siskeyon  Co.  530. 
Reams  0.  State,  526. 


XXXV111 


TABLE    OF   CASES   CITED. 


Reaper's  Bank  0.  Willard.  539. 

Reciprocity  B'k,  Matter  of,  617,  622. 

Red  River  Bridge  v.  Clarkesville,  442. 

Redd  v.  St.  Frances,  562. 

Reddall  v.  Bryan.  446.  448,  453,  457. 

Redraund  v.  Smith,  340. 

Reed  v.  Davis,  260,  334. 

v,  Fullum,  655. 

v.  Ingham,  293. 

v.  Northfield,  334. 

v.  Omnibus  R.  R.  414. 

v.  Rice,  555. 

0.  State,  526. 

0.  Wright,  480. 

Reese  v.  State,  573. 
Reeves  v.  Wood  Co.  447. 
Regina  v.  Baines,  51. 

v.  Birmingham,  257. 

v.  Charlesworth,  574. 

v.  Commissioners,  222. 

v.  Fordham,  259,  324. 

v.  Justices  of  Cambridgeshire.  46. 

v.  Justices  of  Gloucestershire,  46. 

v.  Justices  of  Leicestershire,  259. 

v.  Justices  of  Shropshire,  46. 

v.  Merionetshire,  212. 

0.  Pembridge,  258. 

V.  Preston,  258. 

v.  St.  Edmunds,  104. 

0.  Stock,  212. 

Reid  v.  Tyler,  478. 

Reiser  0.  William  Tell  Ass.  139,  144. 

Reitenbaugh  ».  Chester  Valley  R.  R.  460. 

Remington  v.  State,  279. 

Remley  v.  De  Wall,  540. 

Rensselaer  Glass  Factory  0.  Reid,  290. 

Rensselaer  &c.  R.  R.  0.  Davis,  446. 

Renwick  0.  Morris,  75. 

Reson  r.  Farr,  612. 

Rex  0.  Archb.  of  Armagh,  48. 

0.  Bailey,  65. 

0.  Barlow,  376. 

0.  Birmingham,  319. 

0.  Bleasdale,  336. 

0.  Buggs,  25,  26. 

0.  Cator,  105. 

0.  Clark,  79. 

0.  Cox,  215. 

0.  Davis,  78,  105. 

0.  Gage,  284. 

0.  Glastonby,  307. 

0.  Handy,  281 . 

0.  Hipswell,  259,  320. 

0.  Hymon,  281. 

0.  Jarvis,  50. 

0.  Johnson,  65. 

0.  Justices  of  Leicester,  319. 

0.  Justices  of  London,  111. 

0.  Justices  of  Middlesex,  49,  66. 

0.  Loxdale,  210,  212,  216,  278. 

0.  Lumsdaine,  104. 

0.  Morgan,  92. 


Rex  0.  Pawlyn,  26. 

0.  Pugh,  104. 

0.  Robinson,  345. 

0.  Rogers,  107. 

0.  Sutton,  44. 

0.  Tooley,  104. 

0.  Upper  Papworth,  258. 

0.  Utterby,  94. 

e.  Williams,  39. 

Rexford  r.  Knight,  211.  465,  468,  472. 
Reynolds  0.  Schultz,  455. 

0.  Swain,  12. 

Rhines  v.  Clark,  494. 
Rhodes  0.  Smethurst,  264. 
Rice  0.  Foster,  136,  137. 
0.  Parkman,  147,  656. 

0.  Railroad  Co.  109,  223,  291. 

0.  Ruddiman,  67. 

0.  Wright,  109. 

Rich  «?.  Coffin,  96. 

0.  Flanders,  501.  614,  615,  645. 

0.  Keyser,  212,  229. 

Richards  0.  Patterson,  102. 

0.  Role,  143. 

Richardson  v.  Cook,  161. 

0.  Emswiler,  296. 

0.  Morgan,  427. 

0.  Muryson,  348. 

0.  State,  47. 

0.  Vt.  Cent.  R.  R.  456. 

Richmond  0.  R.  &  D.  R.  R.  583. 
Richmond  &c.  Co.  0.  Rogers,  456. 
Richmond   &c.    R.   R.    0.  Louisa  R.  R, 

442,  595,  639. 
Right  0.  Martin,  109. 
Ripley  0.  Gifford,  366. 

0.  Sampson,  343. 

Rison  0.  Farr,  558. 

Ritter  0.  Ritter,  658. 

River  Dun  Nav.  Co.  0.  No.  Midland  R~ 

R.  397. 

Roach  0.  Cozine,  275. 
Robbins  0.  Milwaukee,  &c.  R.  R.  467. 

0.  Omnibus  R.  R.  222,  225. 

0.  State,  548. 

Roberts  0.  Fahs,  98. 

0.  Goff,  290. 

v.  Ogle,  435,  436. 

0.  Wetberall,  78. 

Robey  0.  West,  112. 
Robins  0.  State,  98. 
Robinson  0.  Allsop,  276. 

0.  Bank  of  Darien,  522. 

0.  Bid  well,  135,  414,  430.. 

0.  Gardiner,  622. 

0.  Howe,  616. 

0.  Lane,  530. 

0.  Magee,  614. 

0.  Richardson,  500. 

0.  Skipworth,  525. 

0.  State,  527. 

0.  Varnell,  201,  224. 


TABLE    OF   CASES   CITED. 


XXXIX 


Robinson  v.  "White,  585. 
Roby  v.  Boswell,  588. 
Rochester  v.  Barnes,  102. 

v.  Briggs,  525,  527,  528,  529. 

Rochester  Water  Co.  v.  Wood,  464. 
Rockwell  v.  Hubbell,  626. 

v.  Nearing,  435. 

Rodman  0.  Munson,  70,  133. 
Rogan  v.  Watertown,  430. 
Rogers,  Case  of,  26. 

v.  Bradshaw,  128,  210. 

®.  Goo'dwin,  213. 

v.  Jones,  390,  391. 

v.  Kennebec  &c.  R.  R.  461. 

0.  Leftwich,  644. 

v.  Pacific  R.  R.  47. 

v.  Rogers.  562. 

v.  State,  532,  533. 

v.  Vass,  47. 

Rolston  v.  Oursler,  88. 
Roos  v.  Swenson,  136. 
Roosevelt  «.  Godard,  267,  436. 

v.  Maxwell,  228,  288. 

Root  v.  McGrew,  612. 

Ropes  v.  Clinch.,  556. 
Rose  v.  Estudillo,  618. 
Ross'  Case,  498. 
Routsong  v.  Wolf,  144. 
Rowan  v.  Runnells,  370. 

v.  State,  478. 

Rowning  v.  Goodchild,  77. 
Royston  v.  Royston,  588. 
Rozier0.  Fagan,  140. 
Rubottom  v.  McClure,  469. 
Ruckman  0.  Cowell,  315. 
Rue  0.  Alter,  272. 

Rulo  v.  State,  574. 

Russell  v.  Mayor,  314,  396,  533. 

v.  Rumsey,  349. 

v.  Wheeler,  312. 

Ruthbun  0.  Acker,  378. 
Rutland  v.  Copes,  615. 
Ryan  0.  Johnson,  534. 
Ryegate  v.  Wardsboro,  226,  255. 
Ryerson  v.  Utley,  527,  528. 

Rykers  Ridge  Turnp.  Co.  v.  Scott,  428. 
Ryinan  0.  Clark,  357. 

Sackett  v.  Sackett,  8. 

Sackett's  Harbor  B'k  0.  Lewis  Co.  73. 

Sacramento  0.  Bird,  100. 

v.  Crocker,  504. 

Sadler  v.  Langham,  412,  444,  447,  450. 
Sailly  r.  Smith,  571. 
St.  Gregory,  Inhabitants  of,  263. 
St.  Joseph  v.  Anthony.  427. 

•».  Han.  &  St.  Jo.  R.  R.  587. 

v.  O'Donoghue,  427. 

St.  Joseph  &c.  R.  R.  v.  Buchannan  Co. 

Ct.  430. 
St.  Louis  0.  Boatman's  Ins.  Co.  228. 

0.  Clemens,  429. 


St.  Louis  v.  Goebel,  279. 

v.  Ind.  Ins.  Co.  98. 

t;.  Laughlin,  360. 

0.  Man.  Sav.  B'k,  587. 

«.  Teifel,  528. 

St.  Louis  &c.  R.  R.  0.  Richardson,  466, 

467. 

St.  Martins  v.  New  Orleans,  98,  209. 
St.  Pancras  0.  Batterbury,  342. 
St.  Paul  &c.  R.  R.  v.  Parcher,  586. 
St.  Peters,  Dean  &c.  of,  0.  Mideborough. 

307. 
Salem  Turnp.  Co.  0.  Essex  Co.  139. 

«.  Hayes,  76. 

Salford  v.  Manchester,  162. 
Salkeld  0.  Johnston,  43,  360. 
Salt  Co.  0.  East  Saginaw,  586. 
Sammon  0.  Holloway,  508. 
Sampeyreac  0.  U.  S.  390. 
Samuels  0.  Dubuque,  510. 
San  Antonio  0.  Gould,  521. 

0.  Jones,  135,  430. 

0.  Lane,  520. 

Sanborn  0.  Rice,  506. 

Sandeman  0.  Breach,  361. 

Sanders  0.  Hillsborough  Ins.  Co.  617. 

Sandford  0.  Nichols,  500. 

Sands  0.  Kimbark,  488. 

San  Francisco  v.  Hazen,  20. 

Santo  0.  State,  136,  165,  414,  436. 

Sarah  0.  Borders,  555. 

Sater  0.  Burlington  &c.  R.  R.  466. 

Satterlee  0.  Mathewson,  165,    350,    471, 

555,  561,  605. 
Saul  0.  His  Creditors,  58. 
Saunders  0.  Carroll,  615. 

0.  Wilson,  645. 

Savacool  0.  Boughton,  330. 
Savage  0.  Walsh,  319,  323,  378. 
Savings  Bank  0.  Allen,  139,  144. 
Savings  Friend  Soc.  0.  Phila.,  582. 
Savoye  0.  Marsh,  622. 

Sawyer  0.  Allen,  508. 
Sayre  0.  Wheeler,  13. 
Scales  0.  Pickering,  292. 
Scammon  0.  Chicago,  505. 
Schenley  0.  Allegheny,  433. 

0.  Commonwealth,  143. 

Schneider  0.  McFarland,  300. 
Schoenberger  0.  School  Directors,  140. 
Schooner  Harriett,  260. 

Schooner  Paulina's  Cargo  0.  U.  S.  206. 
Schooner  Rachel  v.  U.  S.  111. 
Schrifer  0.  Wood,  225. 
Schroeppell  i    Corning,  92. 
Schurmeir  0.  St.  Paul  &c.  R.  R.  458. 
Schuster  0.  Metropolitan  B'k,  138. 
Scobey  0.  Gibson,  616. 
Scofield  0.  Collins,  197. 
Scott  0.  Smart's  Ex'ors,  348. 

0.  State,  226. 

0.  Walkins,  303,  478. 


xl 


TABLE    OF   CASES   CITED 


Scoville  0.  Canfield,  64. 
Scribner  v.  Fisher,  GOO,  623. 
Scrivener,  Ex  parte,  290. 
Scruggs  v.  Blair,  367. 

0.  Mayor,  416. 

Seale  ».  Mitchell,  227. 
Seamans  0.  Carter,  161. 
Sears  v.  Cottrell,  476,  509. 

v.  Warren  Co.  508. 

Second  Eccl.  Soc.  i\  First  Eccl.  Soc.  516% 

Seidenbender  v.  Charles,  43,  339. 

Seiple  T.  Elizabeth,  376. 

Selleck  0.  Sugar  Hollow  T.  Co.  359. 

Sellers  ».  Dugan,  69. 

Selma  &  Gulf  R.  R.,  Ex  parte,  431. 

Selman  v.  Wolf,  292. 

Sessions  r.  Crunkilton,  446,  454,  467. 

Sewall  v.  Jones,  298. 

Seymour  0.  Judd,  87,  277,  278. 

Shackford  v.  Newington,  432. 

Shafer  v.  Murnma,  436. 

Sharp  v.  Contra  Costa  Co.  584. 

v.  Johnson,  304. 

v.  New  York,  312,  523. 

0.  .Speir,  304,  306. 

Shaw  v.  Orr,  316. 

v.  Tobias,  91. 

Sheffield  v.  Ratclifife,  174,  198. 
Shell5y  0.  Guy,  260,  368. 

Shelby  County  Ct.  0.  Cumberland  &c.  R. 

R.  430. 

Sheldon  ?-.  Miller,  416. 
Shephardson  0.  Milwaukee  &c.  R.  R.  110. 
Shepherd  0.  People,  560,  574. 
Sheppard  0.  Steele.  488. 
Sherborn  0.  Wells,  373. 
Sheriff  0.  Lowndes,  585. 
Sherman  0.  Barnard.  70. 

v.  Smith.  5S5,  622. 

0.  Story,  55. 

Sherwood  0.  Flemming,  142. 

f    0.  Reade,  303. 

Shinn  0.'  Commonwealth,  102. 

'Shipper  0.  Penn.  R.  R.  563. 

Shonk  0.  Brown,  140.  . 

Shoover  0.  State,  14. 

Shrader,  Ex  parte,  436. 

Shrewsbury  0.  Boylston,  355. 

Shrewsbury  &c.  R.  R.  0.  London  &  N.  W. 

R.  R.  54. 

Shute  0.  Chicago  &c.  R.  R.  465. 
Shuttle-worth  0.  Cocker,  259. 
Sibley  0.  Smith.  306. 
Sickles  ®.  Sharp,  283. 
Sika  0.  Chicago  &c.  R.  R.  229. 
Sill  0.  Corning,  582. 
Simar  v.  Canaday,  582. 
Simonds  0.  Powers,  200. 

0.  Simonds,  139. 

Simpson  v.  Unwin,  258. 

Simpson  Co.  Court  0.  Arnold,  622. 

Sims  v.  Hampton,  357. 


.  Sims,  Case  of,  570. 

Sing  Sing  0.  Washburne,  563. 

Sinking  Fund  Cornin'rs  0.  Northern  B'k, 
108. 

Sinton  0.  Asbury,  506. 

Skinner  c.  Hartford  Bridge  Co.  469. 

Skinner's  Ex'ors  0.  Hutton.  430. 

Slack  0.  Marysville  &c.  R.  R.  395. 
|  Slaughter  0.  Commonwealth,  504,  562. 

r.  Culpepper,  615. 

|  Slaughter  House  Case,  565. 
j  Slauson  0.  Racine,  414. 
|  Sleight  0.  Russell,  441. 

Slick  0.  Marysville  &c.  R.  R.  484. 

Small  0.  Edrick,  357. 
i  Smith  0.  Appleton,  583. 

0.  Argall,  315. 

v.  Auditor  Gen.  161. 

v.  Bartram,  368. 

0.  Brown,  80. 

0.  Bryan,  617. 

0.  Burley.  599. 

0.  Cleveland,  143.  615. 

0.  Doggett,  535. 

v.  Drew,  74,  75,  77, 

v.  Earl  of  Jersey,  216. 

0.  Eastern  R.  R*.  608. 

0.  Godfrey,  340. 

-  0.  Heimer,  53,  391,  468,  469. 

0.  Henry  Co.  430. 

0.  Hoyt,  56,  108. 

v.  Janesville,  135. 

0.  Judge,  139,  535. 

0.  Lockwood,  76,  77. 

0.  McCarthy,  135,  136. 

0.  Mayor,  523,  618. 

0.  Moffat,  275. 

0.  Moody,  562. 

0.  Morrison,  613,  635,  658. 

0.  Packard,  610,  613,  616. 

0.  People,  98. 

0.  Randall,  200. 

0.  San  Antonio,  492. 

0.  Saxton,  259. 

0.  Short,  507. 

0.  Smith,  229,  366,  478. 

0.  Sparrow,  69. 

0.  Spooner,  298. 

v.  State,  227,  325,  359. 

t.  Stevens,  31. 

0.  Taylor,  465. 

0.  Van  Gilder.  161. 

v.  Wilcox,  70. 

Ex  parte,  568. 

Snell  0.  Bridgewater  &c.  Co.  221. 
Snider  0.  Heidelberger,  612. 
Snyder  0.  Palmer,  613. 

0.  Penn.  R.  R.  458. 

0.  Warren,  357. 

Society  0.  New  Haven,  386. 

Society  for  Prop,  of  the  Gosp.  0.  Wheeler, 

160. 


TABLE    OF   CASES   CITED. 


xli 


Soens  v.  Racine,  426. 
Sohn  0.  Watcrson,  013. 
Solomon  0.  Commissioners,  227. 

r.  Lowry,  615,  619. 

Somerville  &c.  R.  R.  v.  Doughty,  466. 

Sorocco  v.  Gearry,  455. 

South  0.  Madison,  618. 

Southard  0.  Central  R.  R.  643. 

Southport  v.  Ogden,  400. 

Southwark  B'k  v.  Commonwealth,  203, 

354. 

Southwark  v.  Palmyra  &c.  R.  R,  534. 
Southwestern  R.  R.  v.  Paulk,  608. 
Southwick  v.  Southwick,  561. 
Spague  0.  Birdsall,  335. 
Spangler's  Appeal,  456. 
Sparks  v.  Claffer,  617. 
Spear  v.  Crawford,  343. 
Specht  v.  Commonwealth,  14,  69,  335. 
Speer  v.  School  District,  432. 
Spiers  v.  Parker,  50. 
Spricker  v.  Wakeley,  613. 
Sprigg  v.  Jones,  310. 
Spring  ».  Russell,  441. 
Spring  &c.  Works  v.  San  Francisco,  110, 

229. 
Springfield  0.  Conn.  River  R.  R.  443. 

V.  Harapden  Coinm'rs,  659. 
Springfield  Bank  0.  Merrick,  71. 
Squares  ».  Campbell,  435,  476. 
Stack  v.  McGowan,  419. 
Stafford  v.  Ingersoll,  75. 

v.  Lick,  614. 

Stamford  v.  Barry,  145. 
Stamper  v.  Miller,   376. 
Standeford  v.  Wingate,  68,  585. 
Stanhope  0.  Bp.  of  Lincoln,  337. 
Stanleys  Colt,  140. 

v.  Whartou,  333. 

Stanton  0.  Schell,  82. 

v.  Uni.  of  Oxford,  48. 

Stanwood  v.  Green,  500. 
Stariu  0.  Genoa,  135,  429. 
Stark  v.  McGowan,  441. 
Starkweather  v.  Hawes,  612,  616. 
Starr  v.  Pease,  602. 

State  v.  Adams,  557,  608. 

v.  Alexander,  98. 

v.  Allen,  303. 

V.  Ambs,  14. 

v.  Andrews,  96,  110,  575. 

v.  Arline,  559. 

«.  Auditor,  110,  161,  585,  643. 

V.  Baker,  316. 

v.  Bait.  &  Ohio  R.  R.  600. 

v.  Bank  of  So.  Car.  609. 

v.  Banks,  the,  67. 

v.  Barbee,  103. 

v.  Barbour,  574. 

v.  Barker,  585. 

v.  Battle,  574. 

v.  Beebe,  436,  540. 


State  v.  Behimer,  574,  575. 

v.  Beneke,  137,  491. 

v.  BeYry,  100. 

v.  Bishop,  98,  354. 

v.  Bond,  560. 

0.  Bowers,  521.  526. 

v.  Bradford,  163. 

V.  Branin,  599. 

v.  Brennan's  Liquors,  436,  455,  47i 

491,  500,  540. 

v.  Buchanuan,  69. 

v.  Bulton,  225. 

v.  Buzine,  568. 

v.  Callendine,  573. 

v.  Carew,  611. 

0.  Carney,  317. 

v.  Chamberlain,  547. 

v.  Chandler,  14. 

v.  Chase,  296. 

v.  Cincinnati,  539; 

0.  City  Council,  426,  428. 

0.  Clark,  255,  395. 

0.  Clayton,  493. 

0.  Collector,  432. 

0.  Commercial  Bank,  &c.  294. 

v.  Commonwealth,  106,  527. 

0.  Conkling,  108,  365. 

v.  Cornwall,  436. 

0.  Corson,  547. 

0.  County  Coinm'rs,  535. 

0.  County  Court,  535. 

v.  Cowan,  575. 

0.  Cox,  495. 

0.  Cram,  592. 

0.  Crane,  573. 

0.  Cress,  109. 

0.  Crittenden  Co.  586. 

0.  Crow,  102. 

v.  Cummings,  557. 

0.  Cunningham,  494. 

0.  Curry,  292. 

0.  Daley,  109. 

0.  Daw'son,  158,  419. 

0.  Delafield,  330. 

0.  Delaware,  &c.  R.  R.  587. 

v.  Demarest,  432. 

0.  Denton,  493. 

0.  Donehey,  55. 

0.  Doty,  490. 

v.  Douglass,  56,  585. 

0.  Dousman,  317,  414. 

0.  Eastabrook,  505. 

0.  Elden,  575. 

0.  Ellis,  55,  65. 

0.  EMns,  140,  521. 

0.  Elwood,  136. 

0.  Everett,  491,  493. 

0.  Fiala,  536. 

0.  Field,  137. 

0.  Franklin  Falls  Co.  437. 

0.  Fry,  601. 

v.  Fuller,  229. 


xlii 


TABLE    OF   CASES   CITED. 


State  v.  Garesche,  557,  584. 

v.  Gatzweiler,  619. 

v.  Gleason,  494. 

v.  Glenn,  457,  465. 

«.  Goetze,  860. 

v.  Grady,  101. 

T.  Graves,  446. 

v.  Green,  573. 

0.  Gut,  530. 

V.  Gutierrez,  491. 

v.  Haben,  506. 

«.  Hackett,  535. 

v.  Hallovvay,  139. 

v.  Harman,  548. 

v.  Harris,  316. 

v.  Harrison,  530. 

v.  Hays,  54. 

v.  Heighland,  557. 

v.  Henderson,  109. 

v.  Henry,  525. 

v.  Hitchcock,  535. 

v.  Hodgkins,  573. 

• v.  Holmes,  584. 

«.  Holt  Co.  Ct.  375. 

v.  Homer,  316. 

0.  Horsey,  100. 

0.  Hurley,  494. 

v.  Ingersoll,  96. 

v.  Inues,  575. 

v.  Jackson,  432,  507. 

v.  Jersey  City,  608. 

v.  Johnson,  317,  561. 

v.  Jones,  613. 

0.  Judge,  &c.  55,  225,  537. 

v.  Judges,  534. 

v.  Kasson,  574. 

v.  Keeran,  559. 

v.  Keith,  559. 

v.  Keogh,  575. 

V.  King,  96,  361. 

0.  Kinne,  337. 

v.  Kirby,  137. 

v.  Kitty,  98. 

v.  Knight,  64. 

v.  Kruttschnitt,  505. 

v.  Kuttleman,  575. 

v.  La  Crosse,  110. 

v.  Lafayette  Co.  Ct.  530. 

v.  Laverack,  458. 

v.  Lean,  316,  529. 

t>.  Leory,  582. 

v.  Lerned,  547. 

0.  Lindley,  575. 

v.  Linn  Co.  Ct.  428,  430. 

v.  Lovell,   279,  540. 

v.  McCann,  566. 

v.  McCulloch,  533. 

v.  McCullough,  81. 

v.  McDonald,  98. 

v.  McDonough's  Ex'ors,  395. 

v.  McGarry,  220,  360. 

0.  McGinley,  323. 


State  v.  McGinty,  611. 

0.  Macon  Co.  Ct.  98,  215,  367. 

r.  Main,  279. 

v.  Maine,  492. 

0.  Manhattan  &c.  Co,  346,  508. 

v.  Manning,  561. 

V.  Mansfield,  494. 

1\  Martin,  575. 

r.  Massachusetts,  60. 

v.  Mathews,  525,  608. 

0.  Mayor,  50. 

v.  Merchants'  Ins.  Co.  504. 

v.  Merriman,  317. 

v.  Meyers,  371. 

v.  Millain,  547. 

«.  Miller,  228,  436,  493,  585. 

«.  Moore,  345. 

v.  Morrow,  96,  585. 

v.  Nash,  548. 

v.  Neal,  558. 

r.  Nelson,  573. 

v.  Nemaha  Co.  429. 

0.  Newark,  346,  426,  428,  522,  588. 

v.  New  Orleans,  506. 

0.  Noble,  491. 

v.  Norwood,  346. 

0.  Noyes,  395,  443,  588,  608. 

v.  Nutt,  575. 

v.  O'Connor,  109. 

v.  O'Neil,  135. 

!  0.  Orange,  355. 

!   v.  Oskins,  57,  103,  227. 

I v.  Parker,  137. 

v.  Paul,  559. 

v.  Pemberton,  360. 

0.  Perry  Co.  414. 

v.  Petway,  587. 

v.  Pierce,  100. 

0.  Platt.  55. 

0.  Pollard,  103. 

0.  Powers,  280. 

0.  Prince,  573. 

0.  Railroad  Co.  582. 

0.  Rankin,  575. 

v.  Reed,  573,  575. 

0.  Reidel,  548. 

D.  Reynolds,  136. 

0.  Richmond  Town'p,  432. 

0.  Robinson,  493. 

0.  Rodman,  574. 

i?.  Rollins,  8. 

0.  Roosa,  102. 

0.  Ross,  575. 

c.  Ryan,  560. 

0.  St.  Louis  Co.  Ct.  506,  583,  643 

0.  Schlem,  568. 

e.  Schofield,  530. 

v.  Scott,  135. 

v.  Seymour,  465. 

0.  Shaffer,  47. 

0.  Sharswood,  490. 

0.  Shaw,  210. 


TABLE    OF   CASES   CITED. 


xliii 


State  v.  Sickler,  143. 

v.  Smith,  102. 

v.  Sneed,  559. 

v.  Southern  &c.  Pac.  R,  R.  608. 

7?.  Springfield    Town'p,    212,   411, 

541. 

v.  Squires,  142,  530,  536. 

v.  Stanley,  575. 

v.  Starling,  493,  547. 

v.  Staten,  558. 

v.  Stebbins,  574. 

v.  Stephenson,  40. 

v.  Stoll,  102,  588. 

v.  Sullivan,  561. 

v.  Sweetser,  375. 

v.  Swisher,  136,  137. 

v.  Tait,  418. 

v.  Tappan,  432. 

v.  Taylor,  31,  51,  418. 

v.  Thompson,  215. 

D.  Tillotson,  574. 

».  Turner,  560. 

v.  Tweedy,  575. 

v.  Union,  522. 

v.  Van  Horton,  575. 

v.  Walker.  573. 

«.  Wapello,  430. 

v.  Wardens,  530. 

v.  Warner,  575. 

v.  Warren,  643. 

».  Washoe  Co.  Comm'rs,  226. 

».  Weigle,  225. 

t>.  Weir,  136,  137. 

v.  Wheeler,  413. 

v.  Wheeling  Bridge  Co.  13. 

v.  Whetstone,  279. 

v.  Wightman,  575. 

v,  Wilburn,  494. 

v.  Wilcox,  135,  137. 

v.  Wilkesville,  432. 

0.  Williams,  226. 

v.  Wilson,  100,  511,  597,  632. 

v.  Wolcott,  497. 

v.  Woodson,  269,  299. 

State  Bank  «.  Knoop.  582,  598,  638. 

State  Freight  Tax,  508,  563. 

State  Tax  on  Foreign  Bondholders,  509. 

State  Tax  on  Railway  Gross  Receipts,  508. 

State  Treasurer  v.  Collector,  508. 

Stayton  v.  Hulings,  316. 

Steamboat  Farmer  v.  McCrear,  163. 

Steam  Nav.  Co.  0.  Weed,  73. 

Steamship  Co.  v.  Joliffe,  109. 

Stearns  v.  Gittings.  478. 

Stechert  v.  East  Saginaw,  317. 

Stedger  v.  Rodgers,  495. 

Steers  v.  Lashley,  69. 

Steif  v.  Hart,  75. 

Steins  v.  Franklin  Co.  375. 

Stephens  t>.  Reynolds,  541. 

v.  St.  Louis  &c.  B'k,  613. 

v.  Watson,  345. 


Stephenson  v.  Osborn,  612. 
Sternman  v.  State,  108,  365. 
Stevens  v.  Andrews,  611. 

«.  Jeacocke,  77. 

-c.  Wilson,  315. 

Stevens'  Trusts.  In  re,  371. 
Stevenson  v.  Cofferin,  346. 
Stewart  v.  Board  &c.  411. 

v.  Crosby,  418. 

v.  Griffith,  140. 

v.  Mayor,  469,  491,  497. 

«.  Polk  Co.  430. 

v.  Stringer,  269. 

Stiel  v.  Mayor  &c.  296. 
Stilwell  p.  Kellogg,  486,  488. 
Stine  D.  Bennett,  613. 
Stinson  u.  Smith,  427. 
Stockdale  v.  Hansard,  18,  127. 
Stock ett  v.  Bird,  204. 
Stocking  «.  Hunt,  634. 
Stockton  &c.  R.  R.  v.  Barrett,  293. 

v.  Stockton,  430. 
Stoddard  ®.  Chambers,  390. 

v.  Harrington,  607. 

Stoever  v.  Palmer,  112. 
Stokes  v.  Macken,  12,  13. 

v.  New  York,  395. 

-    v.  People,  493. 

v.  Rodman,  346. 

t).  Scott,  430. 

Stone  v.  Bassett,  616. 
Stonington  &c.  B'k  v.  Davis,  103. 
Story  v.  Furnian.  610,  614. 
Stourbridge  Canal  Co.  v.  Wheeley,  ,293. 
Stradling  v.  Morgan,  39. 

Stratton,  Ex  parte,  558. 

Street  R.  R.  r.  Curnminsville,  457. 

Streubel  v.  Milwaukee  &c.  R.  R.  108, 109r 

643. 

Strieker  v.  Kelly,  304,  306,  322. 
Stringer  v.  Young's  Lessee,  390. 
Strode  v.  Commonwealth,  507. 

v.  The  Stafford  Justices,  45. 

Strong  0.  Clem,  581. 

Stroud  v.  Philadelphia,  427. 
Stuart  v.  Kin^ella,  530. 

v.  Laird,  213,  412,  522. 

Stuber's  Road,  585. 
Sturgeon  v.  Kitchens,  530. 

Sturges  v.  Crowninshield,  113,  553,  580> 

613,  623,  634. 
Sturgis  v.  Ewing,  644. 

v.  Spofford,  96. 

Sturtevant  v.  Norris.  162. 
Suffolk  B'k  v.  Worcester  B'k,  334. 
Sullivan  v.  La  Crosse  &c.  Co.  267. 
Sully  t>.  Kuehl,  163. 

Summons  v.  State,  548. 

Sun  Mut.  Ins.  Co.  v.  Mayor,  41,  524,  529. 

v.  New  York,  411. 
Supervisors  v.  Briggs,  171. 

».  Heenan,  55,  317,  523. 


xliv 


TABLE    OF   CASES   CITED. 


Supervisors  v.  Keady,  68. 

0.  People,  381,  521,  533,  539. 

v.  U.  S.  375. 

Surtees  0.  Ellison,  111,  114. 
Susquehanna  Canal  Co.  v.  Wright,   455, 

462. 

Button  r.  Askew,  581. 
Button's  Heirs  0.  Louisville,  433. 
Suydam  0.  Broadnax,  563. 

V.  Keys,  82. 

'    0.  Morris  Canal  Co.  73. 

Swan  v.  Buck,  52,  68,  100,  584,  618. 

v.  Williams,  454. 

Swsrtwout  v.  Mich.  Air-line  R.  R.  520, 

526,  532. 

Swearingen  0.  U.  S.  84. 
Sweet  v.  Hulburt,  430. 
Swet  v.  Troy,  456. 
Swickhard  0.  Bailey,  613. 
Swift  v.  Fletcher,  610,  616. 

v.  Newport,  57. 

v.  Tyson,  368,  370,  550. 

Syracuse  City  B'k  0.  Davis,  134,  172. 

Tabor  v.  Cooke,  489. 
Tadlock  ».  Eccles,  530. 
Talbot  v.  Hudson,  444,  447. 
Tallarnon  v.  Cardenas,  110. 
Tallman  v.  Janesville,  506. 

v.  White,  305. 

Talmage  v.  Pell,  382. 
Tappen,  Matter  of,  524. 
Tarpley  0.  Harner,  610. 
Tate,.Ezparte,  645. 

v.  Stooltzfoot,  172. 

Tatem  0.  Wright,  568. 

Taunton  &c.  Co.  v.  Whiting,  343. 

Tax  Cases,  599. 

Taxpayers  of  Kingston,  Matter  of,  533. 

Taylors.  Allen,  140. 

0.  Boardman,  94. 

v.  Delancy,  197,  365. 

— —    v.  Keeler,  644. 

v.  Marcy,  465. 

0.  Miles,  142. 

v.  Mitchell,  161. 

v.  Newbern,  430. 

0.  Palmer,  226,  429. 

0.  Place,  139. 

v.  Porter,  128,  150,  451,  480. 

• 0.  State,  67. 

0.  Stearns,  611. 

v.  Taintor,  568. 

0.  Taylor,  31,  54,  204,  255,  317. 

0.  Thompson,  432. 

- —   0.  U.  S.  289. 

Teague  0.  State,  51. 

Ten  Eycke  v.  Keokuk,  430. 

Terret  v.  Taylor,  6,  159,  592,  632,  651. 

Terrill  v.  Raukin,  645. 

Terringtou  0.  Hargraves,  113. 

Thames  Man.  Co.  0.  Lathrop,  305. 


Tharp  0.  Fleming,  140. 
Thatchers.  Jones,  333. 

v.  Morris,  72. 

v.  Powell,  304. 

Thayer  v.  Lewis,  335. 
Theriat  0.  Hart,  197,  365. 
Thicknesse  v.  Lancaster  Canal  Co.  469. 
Thien   v.  Voigtlander,  447. 
Thigpen  0.  Miss.  C.  R.  R.  494. 
Thistle  «.  Frostburg  Coal  Co.  269. 
Thomas  v.  Ackerrnau,  29. 

v.  Ashland,  492. 

v.  Dakin,  55,  380,  533. 

v.  Kramer,  137. 

0.  Taylor,  317. 

Thomasson  c.  State,  228. 
Thompson  0.  Alger,  363. 

0.  Commissioners,  538. 

Gibson,  259. 

Grand  Gulf  R.  R.  468,  469. 

Hooper,  583. 

0.  Lee  Co.  430,  618. 

r.  Morgan,  142. 

v.  Pacific  R.  R.  507. 

v.  Pittston,  426. 

v.  Schermerhorn,  399. 

0.  State,  317,  503,  512,  526. 

i-.  Whitman,  562. 

Thorington  0.  Smith,  615,  619. 
Thome  v.  San  Francisco,  616. 
Thornton  0.  Hooper,  618. 

v.  McGrath,  143,  617. 

Thorpe  0.  Adams,  98. 

v.  Rutland   &c.    R.  R.  586,  588,' 

608. 

0.  Schooling,  96. 

Thurber  v.  Townsend,  581. 
Thurston  v.  Percival,  13. 

«.  Prentiss,  344. 

0.  Whiting.  514. 

Tide  Water  Co.  ».  Coster,  429,  447. 
Tierney  0..  Dodge,  100. 
Tilford  0.  Ramsey,  139,  227. 
Tillman  0.  Lansing,  166. 
Tillotson  0.  Millard,  616. 
Tims  v.  State,  496,  542. 
Tinicum  Fishery  Co.  0.  Carter,  456. 
Tinsman  0.  Belvidere  &c.  R.  R.  457. 
Tivey  0.  People,  108. 
Tod^  v.  Austin,  447,  448. 
Toledo  Bank  ».  Bond,  586. 
Toledo  &c.  R,  R.  0.  Nordyke,  536. 
Tolland  0.  Williugton,  371. 
Tombs  0.  Rochester  &c.  R.  R.  87. 
Tomlinson  0.  Branch,  587. 
Tompkins  0.  Ashby,  307. 
Tonawanda  R.  R.  v.  Munger,  451,  457. 
Tonnele  0.  Hall,  140. 
Torreyson  0.  Examiners,  200. 
Toulmin  0.  Anderson,  338. 
Towle  0.  Eastern  R.  R.  347. 
v.  Larrabee,  69. 


TABLE   OF   CASES  CITED. 


xlv 


Towle  v.  Smith,  102. 

Towler  0.  Chatterton,  164. 

Town  v.  Lamphere,  280. 

Town  of  Guilford  v.   Chenango  Co.    353, 

425. 
Town  of  Guilford  v.  Cornell,  41,  158,  398, 

425. 

Town  of  Pawlet    v.  Clarke,  6,  632. 
Townsend,  Matter  of,  444,  448,  463. 

v.  State,  579. 

Township  0.  Hackman,  447. 

Tracy  e.  Taltaage,  380,  382. 

Trainer  v.  State,  354. 

Trask  v.  Green,  139. 

Treat  v.  Chapman,  392. 

Trice  v.  Han.  &  St.  Jo.  R.  R.  607. 

Trim  by  v.  Vignier,  364. 

Trombly  v.  Humphrey,  448,  453. 

Trotter  v.  Mills,  26. 

Troutman,  Matter  of,  569. 

Trow  v.  Miss.  &c.  R.  R.  467. 

Troy  &c.  R.  R.  v.  Northern  T.  Co.  456. 

v.  Potter,  472. 

v.  Tibbetts,  76. 
Trumpler  v.  Bemerly,  279. 
Trustees  &c.  v.  Davis,  343. 

0.  Keeting.  403. 

v.  McCaughy,  172. 

v.  Quackenbush,  343. 

Tuohy  v.  Chase,  316. 

Tuolumne  &c.  Co.  v.  Sedgwick,  616. 

Turley  v.  Logan,  55. 

Turner  v.  Brookfield,  515. 

0.  Sheffield  &c.  R.  R.  462. 

0.  State,  101,  574. 

Turney  v.  Wilton,  204,  229. 
Turpin  v.  State,  547. 

v.  Tipton  Co.  585. 

Tuscaloosa  Bridge  Co.  v.  Olmstead,  530, 

532. 

Tuttle  v.  Strout,  520. 
Twitchell  v.  Commonwealth,  437. 
Tyler  v.  Beacher,  444,  447,  449. 

v.  Tyler,  367. 

v.  Yates,  69. 

Tynan  v.  Walker,  277,  360. 
Tyra  0.  Commonwealth,  495. 
Tyson  v.  State,  509. 

Uncas  Nat.  B'k  v.  Rith,  31. 
Underbill  v.  Ellicombe,  77. 
Underwood  v.  Green,  436. 

v.  Lilly,  172,  656. 

v.  McDuffie,  526. 

Union  Bank  v.  Hill,  507. 

v.  Tennessee,  194. 

Union  Bank  of  Tenn.  0.  Jolly's  Admr's, 

563. 

Union  Ins.  Co.  r.  Hoge,  229. 
Union  Pac.  R.  R.  o.  Davis  Co.  427. 

v.  Lincoln  Co.  507. 
United  States  v.  Arredondo,  386. 


United  States  v.  Athens     Armory,     280r 

283. 

v.  Babbitt,  50,  229. 
0.  Bainbridge,  81. 
v.  Battiste,  579. 
r.  Beatty,  279. 
v.  Breed,  289,  333. 

v.  Canter,  566. 

v.  Coffin,  375. 
v.  Collier,  210. 
v.  Conway,  629. 
v.  Daniel,  573. 
v.  De  Witt,  437. 
v.  Distillery,  559. 
v.  Fisher,  40,  262. 
v.  Gilbert,  573. 

v.  Great  Falls  &c.  Co.  566, 

v.  Grundy,  78. 

».  Grush,  374. 

v.  Hall,  356. 

0.  Halstead,  138. 

v.  Haskell,  573. 

v.  Hewes,  337. 
v.  Hoar,  83,  337. 

v.  Hodson,  288. 

v.  100  bbls.  of  spirits,  98, 
280,  283. 

0.  Klein,  139. 

v.  Knight,  550. 

0.  Morris,  282,  579. 

v.  Padelford.  559. 

v.  Palmer,  40. 

v.  Passmore,  111. 

v.  Perchman,  386. 

v.  Perez,  573. 

0.  Porte,  26. 

0.  Riley,  574. 

0.  Robinson,  374. 

0.  Ross,  374. 

T.  Ruggles,  375. 

0.  Samperyac,  139,  660. 

v.  Schooner  Peggy,  386. 

v.  Souders,  565. 

0.  Starr,  561. 

v.  Stern,  201,  204,  226,  280, 
355. 

0.  Stowell,  570. 

i>.  Susan  B.  Anthony,  565. 

v.  1,960  bags 'of  coffee,  78. 

0.  Tobacco  Co.  556. 

0.  Tynen,  100. 

0.  Wiltberger,  287. 

v.  Winn,  285. 

0.  Wonson,  552. 
United  Spates  Bank  0.  Halstead,  217,  552. 

0.  Jones,  221. 

v.  Ragsdale,  226.  310. 

0.  Rossvally,  225. 

United  States  Exp.  Co.  0.  Elleyson,  510. 
United  States  Tel.  Co.  ».  West.   U.  Tel. 

Co.  372. 
University  R.  R.  r.  Hoklen,  431. 


xlvi 


TA*LE   OF   CASES   CITED. 


Updigraff0.  Commonwealth,  14. 

TJpham  0.  Supervisors,  136. 

Upsher,  Ex  parte,  521. 

Usher  0.  Pride,  644. 

Utica  0.  Churchill,  507. 

Utica  &c.  R.  R.,  Matter  of,  437. 

TJtica  Ins.  Co.  0.  Scott,  185,  186. 

Vail  v.  Owen,  82. 

Van  Allen  v.  Assessors,  507. 

Van  Baumbach  v.  Bade,  610,  612,  616. 

Vanderbilt  v.  Adams,  438. 

Vander  Donckt  v.  Thellusson,  369. 

Van  Deusen  0.  Hayward,  74. 

Van  Dine's  Case,  402. 

Van  Hook  0.  Witlock,  86. 

Van  Home's  Lessee  v.  Dorrance,  406,  469, 

471. 

Van  Ness  v.  Pacard,  6,  9. 
Van  Rensselaer  v.  Ball,  610,  617. 

v.  Hays,  610,  614,  617. 

v.  Reed,  614. 

0.  Snyder,  610,  614. 
Van  Slyke  v.  State,  506. 
Van  Swartow  v.  Commonwealth,  497. 
Varick  v.  Briggs,  636. 

v.  Smith,  128,  451,  457. 

Varick 's  Ex'ors  v.  Briggs,  636. 
Vaughan  0.  Scade,  493. 
Veazie  v.  China,  316. 

0.  Mayo,  608. 

Ventress  0.  Smith,  301. 
Vernon  v.  Henson,  612. 
Victory  v.  Fitzpatrick,  341. 
Vidal  v.  Gerard's  Ex'ors,  14. 
Vincent,  Ex  parte,  373. 
Virginia  &c.  R.  R.  v.  Elliott,  466. 

0.  Lyon  Co.  Comm'rs, 

203. 

Voglesong  0.  State,  14,  512. 
Von  Hoffman  v.  Quincy,  583,  584,  618. 
Von  Phul  v.  Hammer,  539. 
Voorhees  0.  Bank  of  U.  S.  49,  301. 
Vose  0.  Cockroft,  88. 

Wabash  &c.  Canal  v.  Beers,  585. 
Wade  0.  Richmond,  456,  619. 
Wager  v.  Troy  &c.  R,  R.  458. 
Wainhouse  0.  Cowie,  338. 
Wakefield  0.  Phelps,  365. 
Wakelee  v.  Mohr,  414. 
Walcott  0.  People,  418. 
Waldo  0.  Bell,  100. 

0.  Wallace,  575. 

Wales  0.  Stetson,  590. 

0.  Webb,  359. 

Walker  0.  Chicago,  312. 

0.  Cincinnati,  431. 

v.  Dunham,  527. 

0.  Whitehead,  609,  610. 

Wall  0.  State,  103,  109. 
Wallace  0.  Holmes,  31. 


Wallace  0.  Karl enowef ski,  452. 

0.  Shelton,  427. 

Waller  0.  Harris,  202,  220. 
Walpole  0.  Elliott,  144. 

Walston  0.  Commonwealth,  548,  560. 
Walter  0.  Bacon,  170,  626,  654. 

0.  People.  493. 

0.  Ross,  60. 

Walther  0.  Warner,  464. 
Walwin  0.  Smith,  281. 
Walworth  v.  Whitewater,  103. 
Wantlan  0.  White,  142. 
Ward  0.  Barnard,  145. 

0.  Maryland,  562,  563. 

0.  New  England  &c.  Co.  140. 

Warden  &c.  0.  Tamworth,  222. 
Ware  0.  Hylton,  385. 

0.  Robinson,  476. 

Wax-field  0.  Fox.  277,  360. 

0.  Ravessis,  644. 

Warne  r.  Varley,  281. 
Warnell  0.  Reed,  339. 

Warner  0.  Beers,  55,  380,  381,  533. 

- —    0.  Fowler,  269,  272. 

0.  People,  533. 

Warren  0.  Commonwealth,  493. 

v.  Doolittle,  79. 

0.  Henley,  427. 

•».  Lyons  City,  459,  619. 

-i —    0.  Paul,  507. 

0.  People,  492. 

0.  Windle,  108. 

Wartman  0.  Philadelphia,  67. 
Washburn  0.  Franklin,  108,  109. 
Washington  0.  Murray,  530. 

0.  Page,  520. 

Washington  Avenue,  In  re,  427. 
Washington  Bridge  Co.  0.  State,  594. 
Washington  Co.  0.  Berwick,  432. 
Washington  University  0.  Rouse,  586. 
Waterville  0.  Co.  Comm'rs,  139. 
Watervliet  &c.  Co.  0.  McKean,  281,  355. 
Watkins  0.  Holman,  134,  147,  151. 

0.  Walker  Co.  442. 

0.  Wassell,  31. 

Watrous  0.  Blair,  280. 

Watson  0.  Mercer,  350,  561,  605,  635. 

0.  N.  Y.  Cent.  R.  R.  644. 

0.  P.  &  C.  R.  R.  465. 

0.  Railroad  Co.  613. 

Watson  Freeman,  Matter  of,  550. 
Watts  0.  Griffin,  496. 

0.  Van  Ness,  70. 

Wayman  0.  Southard,  49,  138,  550. 
Weatherhead  0.  Bledsoe,  84. 
Weaver  v.  Devendorf,  84. 

0.  Lapsley,  530. 

Webb  0.  Baird,  47,  296,  512. 

0.  Bidwell,  26. 

0.  Moore,  617. 

Webster  0.  Alton  &  N.  D.  482. 

0.  Cooper,  169,  368,  550,  576. 


TABLE   OF   CASES   CITED. 


xlvii 


Webster  0.  Peck,  372. 

Weeks  v.  Milwaukee,  426,  427,  430,  505. 

v.  Walcott,  100. 

Weiss  v.  Mauch  Chunk  &c.  R.  R.  102. 
Weister  v.  Hade,  432. 
Welborn  v.  Akin,  609. 
Welch  v.  St.  Genevieve,  618. 

0.  Wadsworth,  110,  617. 

Wells  v.  Casswell,  497. 

v.  Iggulden,  334. 

v.  Porter,  360. 

• v.  Somerset  &c.  R.  R.  442. 

v.  Weston,  426,  647. 

Wells  Co.  Matter  of,  464. 
Wellsford  0.  Todd,  104. 
Wendell  v.  Durbin,  316. 
Wesson  v.  Johnson,  581. 

West  v.  B.  P.  Drainage  Co.  436. 

v.  Sansou,  609. 

Western  &c.  R.  R.  0.  Owings,  465. 
Western  &c.  Soc.  v.  Philadelphia,  583. 
Westervelt  v.  Gregg,  476,  481,  602. 
West  Branch  Bridge  Co.  v.  Dodge,  346. 
West  River  Bridge  Co.  v.  Dix,  442,  631, 

638. 

Wetherell  v.  Jones,  341. 
Wetrnore  v.  Law,  54,  143. 

v.  Story.  403. 

Whallon  v.  Bancroft,  496. 
Wheaton  v.  Peters,  13,  117. 
Wheeler  v.  Chicago,  376. 

v.  McCormick,  361. 

0.  Roberts,  116. 

v.  State,  493,  530. 

„.  Wall,  506i 

Wheelock  v.  Young,  442. 
Whidden  0.  Seelye,  13. 
White  v.  Cannon,  554. 
0.  Carpenter,  310. 

v.  Flynn,  143. 

v.  Hart,  619. 

0.  Tvey,  360. 

0.  Syracuse  &c.  R.  R.  362. 

0.  White,  142,  441,  602. 

White  Mts.  R.  R.  0.  White  Mts.  R.  R.  143. 
White  River  &c.  Co.  v.  Vt.  Cent,  R.  R. 

443. 

Whitehurst  v.  Cohen,  486. 
Whiting  0.  Mt.  Pleasant,  522. 
0.  Sheboygan  R.  R.  430. 

v.  Whiting,  606. 

Whitney  v.  Madison,  507. 

0.  Ragsdale,  506. 

Whitson  v.  Franklin,  608. 
Whittington  0.  Polk,  406. 
Wickham  0.  Page,  228. 
Wilbur  0.  Crane,  259,  275. 

—  0.  Gilmore,  659. 
Wilcox  0.  Fitch,  85. 

—  0.  Rodman,  585. 
0.  Wood,  357. 

Wilds  0.  Van  Voorhis,  142. 


Wilkins  v.  Despard,  78. 

v.  Miller,  530. 

Wilkinson  0.  Chatham,  432. 

0.  Leland,  132,  625,  633,  656. 
Willard  0.  People,  62. 

0.  Whetherbee,  303. 

Willets  0.  RJdgeway,  317. 
Willford  0.  State,  573. 
William  0.  Pritchard,  104. 
Williams  0.  Biddleman,  536. 

0.  Cammack,  135,  427,  428. 

0.  Co.  Comm'rs,  112. 

0.  Detroit,  434. 

0.  Golding,  100,  360. 

0.  Haines,  614. 

v.  Ins.  Co.  of  N.  A.  83. 

0.  Johnson,  161. 

0.  Nat.  Bridge  PI.  R.  Co.  458. 

0.  N.  Y.  Cent.  R,  R.  458. 

v.  Payson,  528. 

0.  People.  375,  529. 

0.  Peyton's  Lessee,  303,  306. 

0.  Potter,  106. 

«,  School  Dist.  321,  447. 

0.  Smith,  161. 

0.  Tappan,  335. 

0.  Williams,  14,  40,  104. 

Williamson  0.  Berry,  369. 

0.  Williamson,  644. 

Willis  ».  Long  Island  R.  R.  296. 
Wilmington  v.  Somerset,  371. 
Wilmington  &c.  R.  R.  ».  Reid.  586. 

0.  Stauffer,  466. 

Wilmot  0.  Rose,  43. 

Wilson  0.  Baptist  Ed.  Soc.  171. 

0.  Commonwealth,  574. 

0.  Knubley,  43. 

0.  Mathews,  606. 

0.  Shorrick,  100. 

0.  State,  494,  575. 

0.  Wall,  556. 

0.  Ward,  387. 

Wilton  0.  Wentworth,  283. 
Winchester  0.  Corinna,  432. 
Wininger  0.  State,  575. 
Winoua  &c.  R.  R.  0.  Waldron,  466,  467, 

521,  608. 
Winslow  0.  Anderson,  81. 

0.  Gifford,  461. 

Winsor  0.  Regina,  573. 
Withers  0.  Buckley,  419. 
Withnell  0.  Gartham,  331. 
Wives  0.  Farr,  169. 
Woark  0.  Winnick,  169. 
Wolcott  0.  People,  509. 

Wolfe  0.  Covington  &c.  R.  R.  458. 

0.  State,  547. 

Wood  17.  Brooklyn,  403. 

0.  Child,  611. 

0.  Kennedy,  110. 

0.  Oakley,  167. 

0.  Terry,  317. 


xlviii 


TABLE   OF    CASES    CITED. 


Wood  v.  "Wellington,  99. 

v.  Wood,  611. 

Woodbridge  v.  Allen,  622. 

v.  Detroit,  427. 

Woodfin  v.  Hooper,  626. 
Woodpin  V.  Sluder,  615. 
Woodrow  v.  O'Connor,  13. 
Woodruff  v.  Fisher,  446. 
0.  Neal,  457,  472. 

v.  Parham,  508. 

e.  Silley,  615. 

i).  Trapnall,  596. 

Woodward  v.  Cotton,  96. 
Woolsey  v.  Dodge,  369,  598. 
Worcester  ®.  Western  &c.  R.  R.  507. 
Worcester  Turnp.  Co.  v.  Willard,  343. 
Work  0.  State,  487,  492,  493,  495. 
Workman  v.  Campbell,  226. 
Worrington  ».  Furbor,  307. 
Worseley  v.  De  Mattos,  276. 

Worth  v.  Fayetteville,  508. 
Wray  v.  Pittsburg,  427. 
Wright  v.  Carter,  458. 


Wright  «.  Cradlebangh,  142,  478. 
v.  Hawkins,   142. 

v.  State,  574. 

Wyandotte  City  v.  Wood,  539. 
Wylie's  Case,  457. 
Wyndham  v.  Cbetwynd,  215. 
Wyneharner  v.  People,  481,  487,  489,  492, 

493,  497. 

Yale,  Ex  parte,  557. 

Yates  i\  Milwaukee,  436,  455. 

Yeatman  v.  Crandall,  427. 

Young  v.  Bank  of  Alexandria,  25,  95,  623. 

«.  Dake,  195,  365. 

v.  Hughes,  161. 

«.  State  Bank,  139,  146. 

v.  The  Territory,  584. 

Younger  v.  State,  574. 

Zabriskie  v.  Railroad  Co.  430. 
Zachary  v.  Chambers,  360. 
Zack  v.  Penn.  R.  R.  295. 
Zanesville  ».  Muskinguna  Co.  504. 


STATUTORY  AND  CONSTITUTIONAL  LAW. 


CHAPTER     I. 


The  Sources  of  Municipal  or  Civil  Law  usually  twofold:  Usage  or  Common  Law 
and  Statute  Law.  —  In  America  a  third  superadded  :  Constitutional  Law.  —  The 
two  last  written  ;  of  these,  the  Interpretation  and  Construction  belong  to  the 
Judiciary.  —  The  Object  of  this  Volume,  to  define  the  Limits  of  Legislative  and 
Judicial  Power  ;  and  to  give  the  Rules  which  govern  the  Application  of  Con- 
stitutional and  Statute,  in  other  words,  of  "Written  Law. 

MAN,  in  whatever  situation  he  may  be  placed,  finds  himself 
under  the  control  of  rules  of  action  emanating  from  an  authority 
to  which  he  is  compelled  to  bow,  —  in  other  words,  of  LAW. 
The  moment  that  he  comes  into  existence,  he  is  the  subject  of 
the  will  of  God,  as  declared  in  what  we  term  the  laws  of  nature. 
As  soon  as  he  enters  into  society,  he  finds  himself  controlled 
by  the  moral  law  (more  or  less  perfect  and  active  according  to 
the  condition  of  the  community  to  which  he  belongs,  and  the 
degree  in  which  it  has  accepted  the  divine  precepts  of  our 
religion),  and  also  by  the  municipal  or  civil  law.*  When 
States  come  to  be  organized  as  separate  and  independent 
governments,  aaid  their  relations  grow  frequent  and  complicated, 
there  is  superadded  the  law  of  nations.  These  codes  are 
variously  enforced,  but  each  has  its  own  peculiar  sanction. 
They  are  curiously  interwoven  together,  and  in  their  combina- 
tion tend  to  produce  that  progress  and  improvement  of  the 
race  which  we  believe  Christianity  teaches,  and  to  which  we 
hope  civilization  leads. 

*  Blackstone,  in  his  introductory  lecture,  denotes  the  particular  customs  of  one  single 

has  referred  to  the  inappropriateness  of  the  municipal  or  free  town,  yet  it  may,  with  suffi- 

phrase  municipal  law.    "  I  call  it  the  municipal  cient  propriety,  be  applied  to  any  one  State 

law,"  he  says,  "  in  compliance  with  common  or  nation  which   is  governed  by  the  same 

speech,  for   though  strictly  that  expression  laws  or  customs." 
1 


2  MUNICIPAL  LAW. 

Thus,  the  law  of  nature,  the  moral  law,  the  municipal  law, 
and  the  law  of  nations,  form  a  system  of  restraints  before 
which  the  most  consummate  genius,  the  most  vehement  will, 
the  angriest  passions,  and  the  fiercest  desires,  are  compelled  to 
bend,  and  the  pressure  of  which  the  individual  is  forced  to 
acknowledge  his  incapacity  to  resist. 

Of  these  various  systems  of  rules  for  the  government  and 
control  of  men,  the  municipal  or  civil  law  asserts  its  claim 
emphatically  as  a  distinct  branch  of  knowledge,  and  is  that  to 
which  we  refer  when  we  speak  of  the  profession  of  the  law, 
the  study  of  the  law,  the  science  of  the  law. 

Municipal  law  is  defined  by  the  great  English  commentator, 
as  "  a  rule  of  civil  conduct  prescribed  by  the  supreme  power 
in  a  State,  commanding  what  is  right  and  prohibiting  what  is 
wrong."  Our  American  Kent  describes  it  "  as  a  rule  of  civil 
conduct  prescribed  by  the  supreme  power  of  a  State."  * 

Both  of  these  definitions  are  perhaps  obnoxious  to  criticism. 
Either  of  them  sufficiently  answers  our  present  purpose. 

Before  entering  on  the  precise  subject  of  this  treatise,  it  is 
necessary  to  have  an  accurate  idea  of  the  various  elements 
constituting  that  system  of  municipal  law  which  controls  the 
conduct  of  the  active  millions  who  compose  our  race. 

The   two   great   sources  of  municipal   or   civil   law,  in   all 

*  Kent,  Com.  i,  446.     Legis  virtus  hcec  est,  forbear  to  do." — Dialogue  between  a  Lawyer 

imperare,  vetare,  permittere,  punire. — Dig.  i,  and  a  Philosopher.     Montesquieu  says  (Exprit 

iii,  7.     There  has  been  much  scholastic  dis-  des  Lois,   Lib.   i,   ch.   i),   "  Les  lois,  dans  la 

cussion  as  to  the  proper  definition  of  the  term  signification  la  plus  etendue,  sont  les  rapports 

Law;  and   when  we  come  to  the  subject  of  necessaries  qui  derivent  de  la  nature  des  choses ; 

the    boundaries  of    legislative    and   judicial  et  dans  ce  sens  tous  les  etres  ont  leurs  lois."     Of 

power,  we  shall  find  that  in  practice  it   is  not  which  Toullier   says   (Droit    Civil  Francais, 

very  easy  to  give  the  phrase  an  accurate  or  vol.  i,  p.  3),  "  On  a  observe,  avec  raison,  que 

fitting  interpretation.     Cicero,  XI  Philip.  12,  cette  definition  etail  plus  obscure  que  la  chose 

and  after  him  Bracton,  Coke,  and  Blackstone  d,    dcfinir."     See    Grotius    de   Jure   Belli    et 

(as  in  the  text),  define  it  to  be  a  holy  sanction,  Pads,  liv.  i,  ch.  i,  as  to  the  distinction  between 

commanding  whatever  is  honest,  and  forbid-  Jus  et  Lex  ;  and  see  also  Fortescue  de  Laudi- 

ding the  contrary.  Sanctiojusta,jubenshonesta,  bus  Legum  Anglice,  Amos's  edition,  p.  8,  in 

et  prohibens  contraria. — Black.   Com.,  Lib.  i,  notes. 

ch.  i.     Blackstone's  citation  is  incorrect,  the  As  to  the  origin  of  the  term,  Cicero  says 

precise  words  are,  Eat  enim  lex  nihil  aliud  nisi  that  lex  is  derived  from  legendo,  or  choosing  : 

recta  et   a   numine   deorum  tracta   ratio,   im-  "  Ego  nostro  (nomine)  a  legendo — nos  delectus 

perans  honesta,  prohibens  contraria.  vim  in  lege  ponimus  et  proprium  legis  est." — 

Bentham,  in  his  Fragment  on  Government,  De   Leg.   i,   6.     "  Quoniam  in   lege  inest  vis 

attacks  Blackstone's  doctrines  on  the  subject  delectus,  jubet  enim  quce  honesta  sunt,  prohibet 

of  the  nature  of  law  in   general,  with   great  contraria"     says  Vinnius,  C'omm.  Just.  Inst., 

severity.     Hobbes  defines  a  law  to  be  "  the  Lib.   i,   Tit.  ii,  §  4.     Turnebus  says  (Cicero, 

command  of  him  or  them  that  have  sovereign  Olivet  edition,  vol.  iii,  p.  160,  note)  that  it  is 

power,  given  to  those  that  be  his  or  their  called  Lex,  quod  legenda  cognoscenda  pnpulo 

subjects,  fully  and  plainly  declaring  what  any  proponerelur. 
one  of  them   may   do  and   what  they  must 


CUSTOM.  3 

countries  of  which  we  have  the  means  of  tracing  the  juris- 
prudence, are  unwritten  law  or  usage,  and  written  or  statute 
law ;  in  other  words,  custom  and  positive  enactment. 

The  first  general  rules  of  action  in  all  young  societies  before 
the  working  of  any  central  authority  is  firmly  established  or 
extensively  recognized,  must  necessarily  result  from  the  adoption 
of  customs  or  usages  recommended  by  their  practical  utility, 
the  growth  of  religious  zeal,  or  local  necessity,  and  established 
as  law  by  gradual  and  general  recognition.  Every  system  of 
jurisprudence  declares  this  truth.  The  civil  law  and  its  great 
expounders  are  all  full  on  the  binding  force  of  custom.  "  Con- 
suetudinis  ususque  longcevi"  says  the  Code,  "non  vilis  auc- 
toritas  est*  And  again :  f  Inveterate  'consuetudo  pro  lege  non 
immerito  custoditur,  et  hoc  est  jus,  quod  dicitur  moribus  con- 
stitutum.  Nam  cum  ipsce  leges  nulla  alia  ex  causa  nos  teneant, 
quam  quod  judicio  populi  receptce  sunt ;  merito  et  ea  quce  'sine 
ullo  scripto  populus pro bavit,  tenebunt  omnes.  Nam  quid  interest 
suffragio  populus  voluntatem  suam  declaret,  an  rebus  ipsis  et 
factis  ?  Quare  rectissime  etiam  illud  receptum  est,  ut  leges  non 
solum  suffragio  legislators  sed  etiam  tacito  consensu  omnium 
per  desuetudinem  abrogentur.  J 

"  Custom,"  says  Voet,  "  is  in  many  respects  like  statutory 
enactment.  It  is  an  unwritten  law  gradually  introduced  by  the 
usages  of  those  who  adopt  it,  and  thus  acquiring  the  force  of  en- 
actment." Legi  in  multis  similis  est  consuetudo;  jus  non  scriptum, 
moribus  utentium  paullatim  introductum,  legis  Jiabens  vigor  em.  \ 

Forti  states  well  and  simply,  the  manner  in  which  custom 
establishes  its  empire.  "  In  the  infancy  of  human  society,  as 
writing  is  little  used,  and  affairs  are  not  yet  complicated,  differ- 
ences are  adjusted  rather  according  to  notions  of  natural  right 
than  statutory  enactment.  The  example  of  one  generation 
becomes  a  law  for  their  descendants,  and  the  rules  found  in 
the  past,  furnish  a  guide  for  the  present  and  the  future.  Thus 
is  introduced  a  kind  of  law  that  is  called  custom."  ^f 

*  Code,  Lib.  viii,  Tit.  53,  Quse   sit  long.  H  Voet,   Comm.  Lib.  i,  Tit.  iii,  §  27,  De 

consuet.  Legibus. 

f  Dig.  i,  iii,  32.  1"  "  Nell  infanzia  delle   humane  societa, 

|  "  Consuetudo  regni  est  communis  lex." —  perche  non  vi  e  uso  di  lettere  ne  gran  compli- 

Anon.  Cro.  Eliz.  10.  cazione   d'affari  le   discordie  tra  gli  uomini 


4  THE  COMMON   LAW. 

So  France,  before  the  revolution  of  1789,  was  to  no  small 
extent  governed  by  the  unwritten  customs  (usages)  of  her 
different  provinces.* 

To  this  source  is  also  chiefly  to  be  traced  the  great  body 
of  the  original  English  law,  "  that  ancient  collection  of  un- 
written maxims  and  customs  called  the  COMMON  LAW,"  f  which 
still  exercises  such  extensive  sway  in  both  England  and  America, 
and  on  which  we  daily  see  engrafted  regulations  owing  their 
origin  to  the  same  principle.  J  Sine  scriptojus  venit,  quod  usus 
approbavit,  nam  diutwni  mores  consensu  utentium  comprolati 
legem  imitantwr.\ 

As,  however,  societies  advance,  and  become  consolidated  or 
crystallized  into  regular  governments,  they  do  not  wait  for  the 
slow  process  of  custom  to  establish  general  rules.  In  order  to 
create  more  certain  and  rapid  uniformity,  they  resort  to  positive 
enactments,  to  statute  laws.  And  these  enactments,  in  many 
cases,  more  or  less  supplant  the  usages  which  precede  them. 
Such  is  the  gradual  tendency  of  civilization. 

So,  the  first  demand  of  that  extraordinary  people  which  has 
been  to  the  world  the  great  exemplar  of  organization  and 
administration,  of  order  and  discipline, — its  first  serious  internal 
struggle,  was  for  a  body  of  written  law  to  replace  the  vague 
and  undefined  customs  and  usages  by  which  they  had  till  then 

associati  ad  uno  stesso  vivere  civile  si  com-  qu'elles  s'appliquent  a  un  plus  grand  nombre 

pongono  piutosto  secondo  la  ragion  naturale  de  questions." 

che  per   autorita   di  leggi  autenticate  della          These  provincial  customs,  or  common  law, 

scrittura.     Poi  1'esempio  dei  maggiori  divien  formed    the    subject    of    separate     treatises 

legge  pel  nepoti,  e  le  regole  che  furon  formate  written   by  the  most  eminent  of  the  French 

pel  passato  danno  norma  al  presente  ed  al  fu-  legists.    Thus,  the   customary   law  of  Nor- 

turo.     In  questa  guisa  s'introduce  una  specie  mandy  was  discussed  by  Basnage  ;  of  Orleans, 

di  gius  che  dicesi,  di  consuetudine." — Forti,  by  Pothier;  of  Paris,  by  Dumoulin. — Camus, 

Instituzioni  Civile,  Lib.  i,  Cap.  ii,  §  11,  p.  19.  Etude  du  JDroit  Francais,  4th  Letter,  pp.  81, 

Franceso  Forti,  of  Pescia,   a  nephew  of  110. 

Sismondi,  the  historian,  born  in  1806,  died  in          f  Blackstone,  Introd.  Sect.  1. 
1838.     He  is,  in  the  domain  of  the  law,  one          "  Consuetude,"  says  Coke,  "is   one  of  the 

of  the  most  eminent  instances  of  the  inextin-  main  triangles  of  the  laws  of  England,  those 

gnishable  genius  of  his  unhappy  country.  laws  being  divided  into  common  law,  statute 

*  Toullier,  Tit.  Prel.  Sect,  xi,  §  188.  law,  and  custom." — Coke,  In$t.  110,  b. — "  par- 

"  L'£tude  du  Droit  Francais,"  says  Camus,  ticular  customs.     I   say,  particular  customs, 

"  comprend  la   connoissance   des    coutumes,  for  if  it  be  the  general  custom  of  the  realm, 

des  ordonnances,  etde  la  jurisprudence  etablie  it  is  part  of  the  common  law." — Coke,  Inst. 

par  les  arrets.   *   *  Chaque  province  a   sa  115,  b. 

coutume  particuliere  quelquefois  diamStrale-          \  Among  the  most  marked  instances  of 

ment  opposee  a  celle  d'une  province  voisine.  the   constant  tendency  of  custom  to  become 

*  *  Les  coutumes  sont  plus  generales  que  les  law,  may  noticed  the  American  marine  in- 

ordonnances  dans  ce  sens  que  leurs  disposi-  surance  doctrine  of  one-third  new  for   old, 

tions  embrassent  plus  de  questions  de  notre  entirely  the  creature  of  a  usage  which   has 

droit.  *  *  C'est  1' etude  des  coutumes  qui  doit  gradually  grownup  with  the  last  half  csntury. 
etre  la  premiere,  par  la  raison  qui  j'ai  touch  ee  \  Inst.  Lib.  i,  Tit.  2,  §  9. 


THE   COMMON  LAAV.  5 

been  governed.  This  was  the  origin  of  the  law  of  the  Twelve 
Tables,  which  united  the  functions  of  a  constitution  and  a  code, 
and  was  for  nearly  a  thousand  years,  until  the  time  of  Justinian, 
the  basis  of  the  jurisprudence  of  Rome.* 

So,  we  see  in  France,  the  old  multifarious  customs  which, 
before  the  revolution,  ruled  the  various  provinces  of  the  king- 
dom, giving  way  to  the  Code,  the  greatest  and  most  permanent 
work  of  the  central  authority  of  the  empire,  f 

So  again  in  England,  although  the  common  law,  the  great 
customary  law,  as  fixed  by  the  art  of  printing,  expounded  and 
extended  by  judicial  interpretation,  retains,  even  to  our  time, 
so  great  a  sway,  still,  we  daily  see  it  modified  by  and  giving 
way  before  the  inroads  of  the  lawgiver. 

But  wherever  a  great  body  of  customary  law  exists,  or  has 
ever  existed,  a  familiar  knowledge  of  its  provisions  and  its 
history  is  indispensable  to  the  jurist.  First  in  point  of  time, 
it  is  often  first  in  point  of  importance,  as  explaining  and  even 
to  a  certain  extent  controlling  the  statute  law  to  which  it 
apparently  gives  place. 

The  importance  of  bearing  this  in  view  in  the  consideration 
of  our  present  subject,  will  be  recognized  when  it  is  recollected 
that  the  great  body  of  unwritten  usages  called  the  common 
law  of  England,  is  also  the  basis  of  the  law  of  this  country. 
The  sources,  indeed,  of  American  and  English  jurisprudence, 
are  identical.  This  is  universally  true,  with  the  exception  only 
of  those  States,  like  Louisiana,  Florida,  Texas,  and  California, 
which,  before  they  were  annexed  to  the  United  States,  belonged 

*  "  The  most  striking  point,"  says  Arnold  citizens,  in  all  its  relations,  social,  civil,  polit- 

(ffist.  of   Home,    ch.    vi,    p.    70),    "  in    the  ical,  moral,  and  religious."^-4r/ioWs  History 

character  of  the  Romans,  and  that  which  has  of  Rome,  ch.  xiii,  p.  146. 
so  permanently  influenced  the  condition   of          f  But  even  this  great  body  of  statute  or 

mankind,  was  their  love  of  institutions  and  of  written  law  bears  traces  of  the   controlling 

order,   their  reverence  for  law,  their  habit  force  of  ancient  usage.     "  Whatever  is  am- 

of  considering  the  individual  as  living  only  biguous,"  says  the  Code  (Art.  1159,  speaking 

for  that  society  of  which  he  was  a  member,  of  the  interpretation  of  contracts),  "  is  to  be 

This   character,  the   opposite  to  that  of  the  interpreted  by  the  usage  of  the  district  where 

barbarian  and  the  savage,  belongs  apparently  the  contract  was  made."     "  Ce  qui  est  ambigu 

to  that  race  to  which  the  Greeks  and  Romans  s'interprete  par  ce  qui  est  a  usage  dans  le 

both  belong,  by  whatever  name,  Pelasgian,  pays  oft   le  contrat  est  passe."    And  again 

Tyrrhenian,  or  Sikelian,  we  choose  to  dis-  (Art.    1648),  "  L'action  resultant   des   vices 

tinguish  it."  redhibitoires  doit  etre  intente  par  1'acquereur 

The    Decemviri    legibus    scribendis,  were  dans  un  bref .  delai   suivant   la   nature    des 

appointed  to  frame  as  well  a  constitution  as  a  vices  redhibitoires   et  1' usage   du  lieu  ou  la 

code  of  laws.     Like  the  Greek  vop6  krai,  "  they  vente   a  ete  faite."     See  also,  Art.  1736  and 

•were  to  provide  for  the  whole  life  of  their  1748. 


6  THE  COMMON  LAW. 

to  countries  governed  by  the  civil  law.  The  colonists  who 
settled  this  country,  were  Englishmen,  with  the  feelings,  the 
attachments,  and  the  prejudices  of  Englishmen.  It  became 
necessaryJTor  them  to  establish  or  recognize  and  adhere  to  some 
system  of  law  from  the  moment  they  landed.  That  system  was 
of  necessity  the  English,  and  accordingly,  we  find  the  doctrine 
to  have  always  been  that  the  colonists  were  subject  to,  and,  as 
it  were,  brought  with  them,  the  great  principles  of  the  common 
law  of  the  mother  country,  with  such  modifications  as  the  legisla- 
tive enactments  of  Parliament  had  at  that  time  introduced  into  it, 
or  the  particular  situation  of  the  colonists  in  their  new  condition 
required.  It  is  to  be  understood,  then,  as  a  general  principle, 
that  the  basis,  the  fundamental  element,  the  starting  point,  of 
the  jurisprudence  of  the  States  of  the  Union,  is  the  common 
law  of  England,  so  far  as  the  same  is  not  actually  repugnant  to 
our  system.  The  exceptions  we  shall  hereafter  consider;  but 
so  it  has  been  repeatedly  decided  and  affirmed  in  the  thirteen 
old  States,  as  they  are  called,  which  in  1776  threw  off  the 
English  sovereignty.  The  declaration  of  rights  made  by  the 
first  Continental  Congress,  in  1774,  declares  that  "the  respective 
colonies  are  entitled  to  the  common  law  of  England,  and  to  the 
benefit  of  such  of  the  English  statutes  as  existed  at  the  time  of 
their  colonization,  and  which  they  have,  by  experience,  found 
to  be  applicable  to  their  social,  local,  and  other  circumstances."  * 

This  is  the  uniform  language  of  our  judicial  decisions, 
whether  of  the  federal  or  State  tribunals.  It  has  been  declared 
by  the  Supreme  Court  of  the  United  States,  that  our  ancestors 
brought  with  them  the  general  principles  of  the  common  law 
as  in  force  at  their  emigration,  and  claimed  them  as  their  birth- 
right, f  Nevertheless,  that  the  common  law  of  America  is  not 
to  be  taken  in  all  respects,  to  be  that  of  England,  but  that  the 
settlers  brought  with  them,  and  adopted,  only  that  portion 
which  was  applicable  to  their  situation.  J 

The  Supreme  Court  has  also  declared  that  English  statutes 
passed  before  the  emigration  of  our  ancestors,  being  applicable 

*  Declar.  in  Shepard's  Cons.  Text  Book,  i  Van  Ness  v.  Pacard,  2  Peters,  pp.  137 

App.  p.  262.  and  144. 

f  Terrett  v.  Taylor,  9  Cranch,  43 ;   Town 
of  Pawlet  T.  Clark,  9  Cranch,  292  and  333. 


THE   COMMON  LAW.  7 

to  our  situation,  and  in  amendment  of  the  law,  constitute  a 
part  of  our  common  law,*  and  the  construction  of  such 
statutes  which  prevailed  at  the  revolution,  is  the  rule  for  the 
courts  of  the  United  States.  English  judicial  decisions,  there- 
fore, pronounced  previous  to  our  Declaration  of  Independence, 
construing  or  interpreting  such  statute  law  of  the  mother 
country  as  we  have  adopted,  are  to  be  received  here  as  a  part 
of  such  statutes ;  but  judicial  decisions  on  such  statutes,  pro- 
nounced subsequently  to  our  revolution,  though  treated  with 
great  respect,  are  not  to  be  admitted  as  authority.f 

So,  the  Court  of  Chancery  of  the  State  of  New  York  has 
said :  "  It  is  a  natural  presumption,  and  therefore  adopted  as  a 
rule  of  law,  that  on  the  settlement  of  a  new  territory,  by  a 
colony  from  another  country,  and  where  the  colonists  continue 
subject  to  the  government  of  the  mother  country,  they  carry 
with  them  the  general  laws  of  that  country,  so  far  as  those 
laws  are  applicable  to  the  colonists  in  their  new  situation, 
which  thus  become  the  unwritten  law  of  the  colony,  until 
altered  by  common  consent  or  legislative  enactment ;  "  J  and  it 
was  said  to  be  evident  that  there  was  a  common  law  existing 
in  the  State  of  New  York,  restraining  religious  corporations 
from  alienating  church  property,  which  colonial  common  law 
resulted  from  the  importation  of  the  English  restraining  acts 
in  force  at  the  settlement  of  the  colony.  || 

In  Maryland,  it  has  been  decided  under  the  Constitution  of 
that  State,1!"  that  their  adoption  of  the  common  law  has  no 
reference  to  adjudications  in  England  anterior  to  the  colonization, 
or  to  judicial  adoptions  here  of  any  part  of  the  common  law 
during  the  continuance  of  the  colonial  government,  but  to  the 
common  law  in  mass,  as  it  existed  here  either  potentially  or 
practically,  and  as  it  prevailed  in  England  at  the  time,  except 
such  portions  of  it  as  were  inconsistent  with  the  spirit  of  the 
State  Constitution  and  the  nature  of  our  new  political  institu- 

*  Cathcart   v.  Robinson,  5   Peters,  264-  Peter's  Churcli,  3  Barb.  Ch.  R.  119;  s.  c.  3 

280;   Fowler   v.    Stoneum,    11    Texas,    478;  Coma.  238. 

Bogardus   v.   Trinity  Church,  4  Paige,  178;  |  Canal  Commissioners  v.  The  People,  5 

Commonwealth  v.   Knowlton,   2   Mass.    534.  "Wend.   R.    445;  Canal    Appraisers    v.    The 

f    Patterson    v.    Winn,    5    Peters,     233 ;  People,  17  Wend.  584. 
Cathcart  v.  Robinson,  5  Peters,  264.  "[[  Decl.  of  Rights,  Sec.  3. 

$  De    Ruyter    v.    The    Trustees    of   St. 


8  THE   COMMON  LAW. 

tions ;  and  on  this  ground  it  was  held  that  the  emigrants  brought 
with  them  into  that  colony,  the  common  law  of  conspiracy. 

So .  it  has  been  held  by  the  Supreme  Court  of  New  Hamp- 
shire, that  the  body  of  the  English  common  law  and  the 
statutes  in  amendment  of  it,  so  far  as  they  were  applicable  to 
the  government  and  to  the  condition  of  the  people,  were  in 
force  as  a  part  of  the  law  of  that  province,  before  the  revolu- 
tion, except  when  other  provision  was  made  by  express  statute 
or  by  local  usage;  and  they  decided  that  an  indictment  at 
common  law  could  be  sustained  for  an  assult  and  false  imprison- 
ment, and  for  kidnapping,  though  there  were  no  statute  of  the 
State  in  force  creating  the  offence.* 

In  Massachusetts,  it  has  been  expressly  declared  f  that  the 
first  settlers  "  on  coming  to  that  State,  brought  with  them,  the 
rights  and  privileges  of  Englishmen  and  the  common  law  of 
that  country,  so  far  as  it  should  be  found  applicable  to  their  new 
state  and  condition.  They  brought  with  them  also,  a  charter 
containing  power  to  make  such  new  laws  as  their  exigency 
might  require.  They  could  live  under  the  old  laws,  or  make 
new  ones.  Whenever  they  legislated  upon  any  subject,  their 
own  law  regulated  them  ;  when  they  did  not  legislate,  the  law 
they  brought  with  them  was  their  rule  of  conduct."  And  the 
Supreme  Court  held  "that  the  law  by  which  the  emigrants 
were  governed  in  regard  to  waste  committed  by  tenants,  was 
the  law  in  force  in  England  at  the  time  of  the  emigration. 
Unless  our  ancestors  can  be  supposed  to  have  settled  this 
country  and  to  have  held  real  estate  without  any  law  to  protect 
and  preserve  it,  the  law  which  was  in  force  in  the  country 
which  they  had  left,  was  the  law,  and  remained  so  in  regard  to 
the  descent,  alienation,  etc.,  of  real  property,  and  the  remedies 
for  injury  to  it,  until  they  saw  fit  to  supersede  it  by  a  law  of 
their  own  making."  This  principle  also,  has  been  held  in  that 
State,  to  apply  to  the  English  statutes  amending  or  altering 
the  common  law,  and  in  force  at  the  time  of  the  emigration. 
But  the  statutes  passed  subsequently  are  only  understood  to 
be  in  force  so  far  as  they  may  have  been  practically  received 

*  State  T.  Rollins,  8  N.  H.  R.  p.  650.  f  Sackett  v.  Sackett,  8  Pick.  309,  315. 


THE  COMMON  LAW.  9 

Into  their  system.*  The  common  law  of  Massachusetts  is  also 
said  to  embrace  some  ancient  usages,  originating  probably  from 
laws  passed  by  the  colony  of  the  Massachusetts  Bay,  annulled 
by  the  repeal  of  the  first  charter,  but  by  the  former  practice  of 
the  colonial  courts  accommodated  to  the  habits  'and  manners  of 
the  people.-)- 

And  this  adoption  of  the  common  law,  even  in  criminal 
cases,  appears  equally  established  in  Maine,  J  it  having  been 
held  in  that  State,  that  to  cast  a  dead  body  into  a  river,  without 
the  rites  of  Christian  sepulture,  is  indictable  as  an  offence 
against  common  decency. 

It  is  very  important  to  bear  in  mind  the  exception  already 
mentioned,  that  only  so  much  of  the  English  common  law  was 
adopted  by  the  colonies  as  was  applicable  to  their  condition. 
So  the  English  law  of  fixtures,  permitting  the  tenant  to  remove 
trade  fixtures,  but  forbidding  him  to  disturb  those  made  for 
agricultural  purposes,  was  never  the  law  of  this  country. 
"  The  country  was  a  wilderness,  and  the  universal  policy  was  to 
procure  its  cultivation  and  improvement.  The  owner  of  the 
soil,  as  well  as  the  public,  had  every  motive  to  encourage  the 
tenant  to  devote  himself  to  agriculture,  and  to  favor  any  exer- 
tion that  should  aid  this  result."  Such  is  the  intimation  of  the 
Supreme  Court  of  the  U.  S. ;  |  and  in  the  State  of  New  York, 
the  right  of  the  tenant  to  remove  any  "  erections  that  he  may 
have  had  occasion  to  make  for  his  own  use  or  enjoyment,  if 
he  can  do  so  without  injury  to  the  inheritance,"  and  without 
reference  to  their  particular  character,  has  been  specifically 
declared.^" 

So,  again,  on  the  same  principle,  it  has  been  held  in  the 
same  State  that  the  English  law  of  ancient  lights  was  never 
adopted  in  this  country ;  **  and,  in  the  absence  of  any  special 
covenant,  that  when  an  owner  of  two  adjoining  lots  in  a  city 
leased  one  of  them  on  which  was  a  building  receiving  its  light 
and  air  through  an  open  space  on  the  adjacent  lot,  that  the 
proprietor  had  a  right  to  build  on  the  lot  in  question,  so  as 

*  Commonwealth  v.  Knowlton,  2  Mass.  R.  ±  Kanavan's  Case,  1  Greenl.  226. 

630,  534.     See  also,  Commonwealth  v.  Leach,  f  Van  Ness  v.  Pacard,  2  Peters,  137,  144. 

1  Mass.  59.  «j[  Dubois  v.  Kelly,  10  Barb.  496. 

f  Commonwealth  v.   Knowlton,   2  Mass.  **  Parker  v.  Foote,  19  Wend.  309. 
R.  530,  534. 


10  THE   COMMON   LAW. 

even  to  darken  or  stop  the  windows  of  Ms  tenant,  and  that  his 
absolute  right  of  property  could  not  be  interfered  with  by 
injunction.* 

Such  then,  we  learn  from  the  highest  authority,  was  the 
silent  and  practical  adoption  of  the  common  law,  by  the 
colonists  who  on  the  shores  of  the  Atlantic  laid  the  foundations 
of  empire.  But  when  the  revolution  broke  out,  and  the 
inhabitants  of  the  new  States,  with  that  provident  forecast  to 
which  attention  will  hereafter  be  called,  undertook  by  solemn 
instruments,  to  declare  and  fence  in  their  rights  and  liberties, 
it  became  necessary  to  determine  the  fundamental  law  of  the 
sovereignties  just  springing  into  life.  So  we  shall  find  that  at  the 
revolution  of  1776,  by  the  Constitutions  of  most  if  not  all  the 
States,  the  great  body  of  the  common  law,  and  such  of  the 
English  statutes  as  were  not  repugnant  to  our  system,  were 
preserved  and  adopted  as  binding  on  us.  But  the  common  law 
of  England  is  perpetually  fluctuating ;  and  it  would  have  been 
altogether  inconsistent  with  proper  notions  of  national  in- 
dependence to  give  the  law  of  a  foreign  country  any 
permanent  control  over  our  tribunals  or  our  people.  It  was, 
therefore,  necessary  to  fix  a  time  after  which  any  changes 
effected  in  the  common  law  of  the  mother  country  would  have 
no  effect  here.  And  that  period  is  the  revolution.  That 
epoch  is  the  era  of  our  independence,  legal  as  well  as  political, 
and  we  recognize  no  foreign  law  posterior  to  that  period, 
binding  on  us  as  authority. 

So,  the  Constitution  of  the  State  of  New  York  of  1777 
provided  (Art.  xxxv),  that  "  such  parts  of  the  common  law  of 
England,  and  of  the  statute  law  of  England  and  Great 
Britain,  and  of  the  acts  of  the  Legislature  of  the  colony 
of  New  York,  as  together  did  form  the  law  of  the  said  col- 
ony on  the  nineteenth  day  of  April,  in  the  year  of  our  Lord, 
1775,  should  be,  and  continue  the  law  of  the  State,  subject 
to  such  alterations  and  provisions  as  the  Legislature  of  the 
State  should  from  time  to  time  make  concerning  the  same." 
The  Constitution  also  adopted  such  resolves  or  resolutions  of 
the  Congresses  and  of  the  colony  of  New  York,  and  of  the 

*  Myers  v.  Gemmel,  10  Barb.  637. 


THE  COMMON  LAW.  11 

Convention  of  the  State  of  New  York,  as  were  then  in  force, 
and  not  repugnant  to  the  new  government,  subject  also  to 
the  power  of  the  Legislature  to  alter;  and  they  abrogated  and 
abolished  all  such  parts  of  the  English  common  and  statute 
law,  and  of  the  colonial  enactments,  as  established  any  particu- 
lar denomination  of  Christians,  or  as  created  allegiance  to  the 
king  of  Great  Britain,  or  as  were  repugnant  to  the  new  Consti- 
tution. The  amended  Constitution  of  the  same  State,  of  1821 
(Art.  vii,  §  13),  adopted  such  parts  of  the  common  law,  and  of 
the  acts  of  the  Legislature  of  the  colony  of  New  York,  as 
formed  the  law  of  the  colony  on  the  19th  of  April,  1775,  and 
the  resolutions  of  the  Congress  of  the  colony,  and  of  the 
Convention  of  the  State  of  New  York,  in  force  on  the  20th 
April,  1777,  not  since  expired,  repealed,  or  altered,  and  not 
repugnant  to  the  Constitution,  and  subject  to  the  power  of  the 
Legislature.  The  Constitution  of  the  same  State,  of  1846 
(Art.  i,  §  17),  contained  the  same  provision  which,  as  it  will 
be  seen,  omits  all  mention  of  the  statute  law  of  Great  Britain. 

The  Constitution  of  Maryland  (1776)  declared  (Art.  iii), 
that  the  inhabitants  of  Maryland  are  entitled  to  the  common 
law  of  England,  and  to  the  benefit  of  such  of  the  English 
statutes  as  existed  at  the  time  of  the  first  emigration,  and  which, 
by  experience,  have  been  found  applicable  to  their  social  and 
other  circumstances,  and  of  such  others  as  have  since  been  made 
in  England  and  Great  Britain,  and  have  been  introduced  and 
practiced  by  the  courts  of  law  and  equity,  and  also  to  all  acts 
of  Assembly  in  force  on  the  1st  of  June,  1774,  except  such  as 
may  have  since  expired  or  have  been  altered  by  acts  of 
Convention,  or  the  Declaration  of  Eights,  subject  to  the  re- 
vision of  the  Legislature. 

The  Constitution  of  Massachusetts  (1780)  contained  this 
simpler  provision  (Chapter  vi,  Art.  vi.)  "  All  the  laws  which 
have  heretofore  been  adopted,  used,  and  approved  in  the  prov- 
ince, colony,  or  State,  of  Massachusetts  Bay,  and  usually  prac- 
ticed on  in  the  courts  of  law,  shall  still  remain  and  be  in  full 
force  until  altered  or  repealed  by  the  Legislature,  only  excepting 
those  parts  repugnant  to  the  rights  and  liberties  contained  in 
this  Constitution."  And  the  Supreme  Court  of  this  State,  as 


12  THE   COMMON   LAW. 

we  have  seen,  has  said  that  the  first  settlers  of  the  colony 
regarded  the  law  of  England  as  their  law,  and  governed  them- 
selves by  it.* 

The  Constitution  of  New  Hampshire  (1792)  adopted  sub- 
stantially the  same  provision  as  the  one  last  cited  from  that  of 
Massachusetts. 

The  Constitution  of  New  Jersey  (1776)  declared,  §  21,  that 
the  laws  contained  in  the  edition  lately  published  by  Mr. 
Allison,  such  only  excepted  as  are  incompatible  with  the 
Constitution,  should  be  and  remain  in  full  force  until  altered 
by  the  Legislature  of  the  colony ;  and,  §  22,  that  the  common 
law  of  England,  as  well  as  so  much  of  the  statute  law  as  has 
been  heretofore  practiced  in  the  colony,  shall  still  remain  in 
force  till  altered  by  the  Legislature,  such  parts  only  excepted 
as  are  repugnant  to  the  rights  and  privileges  contained  in  the 
new  Constitution. 

We  see,  that  by  these  constitutions,  the  common  law,  as 
such,  was  recognized ;  and  such  may  be  assumed  to  be  gener- 
ally the  law  of  those  States  the  constitutions  of  which  contain 
no  such  affirmative  provision,  (a) 

*  Commonwealth  v.  Alger,  7  Gushing,  53,  cussion  on  the  "  Body  of  Liberties  "  adopted 
66.  See  this  case  for  a  very  interesting  dis-  in  1641,  by  the  colony  of  Massachusetts. 

(a)  It  is  often  laid  down  as  a  general  proposition,  that  the  common  law  is  pre- 
sumed to  be  in  force  in  another  State.  If  this  presumption  rests  upon  what  may  be 
judicially  taken  notice  of  in  the  history  of  the  country,  it  should,  in  the  language  of 
Judge  Field,  be  confined  to  "  those  States  which  were  originally  colonies  of  England, 
or  were  carved  out  of  such  colonies,"  and  to  "  territory  acquired  since  the  revolu- 
tion, where  such  territory  was  not,  at  the  time  of  its  acquisition,  occupied  by  an 
organized  and  civilized  community."  Norris  v.  Harris,  15  Cal.  226.  See  Stokes  v. 
Macken,  62  Barb.  145,  where  it  is  laid  down  that  if  the  foreign  State  was  once 
under  the  same  government  as  the  State  of  the  forum,  the  court  will  take  judicial 
notice  of  what  the  law  then  was,  and  will  presume  it  unchanged.  Thus  the  civil 
law,  in  a  modified  form,' prevails  in  Louisiana.  Reynolds  v.  Swain,  13  Louis.  R.  193. 
In  California  the  common  law  prevails,  Comp.  Laws,  ch.  41 ;  and  in  Florida, 
Thomp.  Dig.  p.  21 ;  and  in  Texas,  Act  of  Jan.  26,  1840. 

As  to  foreign  countries  where  the  common  law  is  known  not  to  prevail,  the  only 
presumption  which  could  have  any  basis  of  probability  would  be  that  the  general 
principles  there  obtain,  which  naturally  belong  to  all  systems  alike.  In  respect  of 
some  branches  of  the  law,  in  which  there  is  everywhere  a  general  similarity, — e.  g., 
commercial  law, — identity  might,  perhaps,  be  presumed. — Story  on  Confl.  of  Laws, 
§  637  a. 

When  the  presumption  that  the  common  law  is  in  force  is  entertained,  is  it  the 


THE  COMMON  LAW.  13 

At  the  same  time  it  has  been  declared  by  the  Supreme 
Court  of  the  United  States,  to  be  clear  that  there  can  be  no 
common  law  of  the  Union.  The  federal  Government  is  com- 
posed of  twenty -four  sovereign  and  independent  States,  each  of 
which  may  have  its  local  usages  and  common  law ;  but  there  is 
no  principle  which  pervades  the  Union,  and  has  the  authority 
of  law,  that  is  not  embodied  in  the  Constitution  or  laws  of  the 
Union.  The  common  law  could  be  made  a  part  of  the  federal 
system  only  by  legislative  adoption.  It  is  settled  that  the 
federal  courts  have  no  jurisdiction  of  common-law  offences,  and 
that  there  is  no  common  law  of  the  Union.*  When,  therefore, 
a  common-law  right  is  asserted,  we  must  look  to  the  State 
where  the  controversy  originated.  What  is  common  law  in  one 
State  may  not  be,  and  frequently  is  not  so  considered,  in  an- 
other. The  judicial  decisions,  the  usages  and  customs  of  the 
respective  States,  must  determine  how  far  the  common  law  has 
been  introduced  and  sanctioned  in  each.f 

*  State  of  Pennsylvania  v.  The  "Wheeling  prefer  to  express  the  doctrine)  prevails  in  the 

Bridge  Co.  13  Howard,  519.  United  States  as  a  system  of  national  juris- 

f  Wheaton  v.  Peters,  8  Peters  R.  591  and  prudence.  To  what  extent  it  is  applicable,  I 

659.  But  see  the  very  able  opinion  of  the  need  not  hazard  an  opinion,  either  in  general 

late  Vice-Chancellor  Sandford,  in  Lynch  v.  terms  or  in  particular  instances,  beyond  the 

Clarke,  1  Sandf.  583,  where  he  says,  p.  654,  case  in  hand;  but  it  seems  to  be  a  necessary 

"  In  my  judgment  there  is  no  room  for  doubt,  consequence,  from  the  laws  and  jurisprudence 

but  that  to  a  limited  extent  the  common  law  of  the  colonies,  and  of  the  United  States  un- 

(or  the  principles  of  the  common  law,  as  some  der  the  articles  of  confederation,  that  in  a 

common  law  as  brought  from  England,  unaffected  by  local  statutes  and  modifica- 
tions, or,  is  it  the  common  law  as  altered  Joy  the  State  of  the  forum  ?  In  favor  of  the 
first  of  these  alternatives,  see  Gordon  v.  Ward,  16  Mich.  360  ;  Johnson  v.  Chambers, 
12  Ind.  102  ;  and  see,  also,  Thurston  v.  Percival,  1  Pick.  415. 

But,  in  many  courts  the  presumption  is  not  based  upon  any  probability  as  to 
what  the  foreign  law  actually  is,  but  upon  the  necessity  of  applying  some  certain  and 
known  rule,  which  rule,  it  is  said,  must  be  that  of  the  forum  until  a  different  one  is 
shown.  Thus,  in  Pagett  v.  Curtiss,  15  La.  Ann.  451,  the  law  of  South  Carolina,  a 
common-law  State  was  presumed  to  be  that  of  the  forum,  Louisiana,  where  the  civil 
law  is  the  basis  of  the  established  jurisprudence;  and  in  New  York,  in  Monroe  v. 
Douglas,  5  N.  Y.  447,  it  was  held  that  a  Scotch  settlement  of  real  estate,  in  the  ab- 
sence of  proof  of  the  Scotch  law,  must  be  construed  according  to  the  lex  fori.  And 
even  the  statute  law  of  the  forum  is  applied.  In  fact,  if  the  doctrine  rests  upon  the 
basis  last  mentioned,  and  not  upon  any  considerations  of  probability  as  to  what  the 
foreign  law  actually  is,  the  statutory  law  of  the  forum  must  be  applied  as  readily, 
and  for  the  same  reason,  as  the  common  or  unwritten  law.  See,  also,  Bean  v.  Briggs, 
4  Iowa,  464  ;  Sayre  v.  Wheeler,  32  Iowa,  559  ;  Allen  v.  Watson,  2  Hill  (S.  C.),  319; 
Woodrow  v.  O'Connor,  28  Vt.  776 ;  Whidden  v.  Seelye,  40  Me.  247 ;  Stokes  v. 
Macken,  63  Barb.  145. 


14  CONSTITUTIONAL  LAW. 

It  is  often  said  that  Christianity  is  part  and  parcel  of  the 
common  law ;  but  this  is  true  only  in  a  modified  sense.  Blas- 
phemy is  an  indictable  offence  at  common  law ;  but  no  person 
is  liable  to  be  punished  by  the  civil  power  who  refuses  to  em- 
brace the  doctrines  or  follow  the  precepts  of  Christianity ;  our 
Constitutions  extend  the  same  protection  to  every  form  of  relig- 
ion, and  give  no  preference  to  any.  Still  though  Christianity 
is  not  the  religion  of  the  State,  considered  as  a  political  corpo- 
ration, it  is  nevertheless  closely  interwoven  into  the  texture  of 
our  society,  and  is  intimately  connected  with  all  our  social 
habits,  and  customs,  and  modes  of  life.*  (a) 

The  great  body  of  the  common  law  of  England,  and  of  the 
statutes  of  that  country  as  they  existed  in  1776,  are,  then,  so 
far  as  applicable  to  our  condition,  the  basis  of  our  jurisprudence. 
Upon  this  foundation  we  have  erected  a  great  superstructure 
of  law,  the  fabric  of  judicial  decisions  and  the  product  of  the 
numerous  legislative  bodies  to  which  the  government  of  the 
States  and  of  the  Union  is  confided.  As  we  shall  have  occasion 

matter   which  by  the  Union  has  become  a  Ayres  v.  The  Methodist  Episcopal   Church, 

national  subject,  to  be  controlled  by  a  princi-  3  Sandf.  351 ;  Andrews  v.  N.  Y.  Bible  and 

pie  coextensive  with  the  United  States,  in  the  Prayer  Book  Society,  4  Sandf.  156;  Viclal  v. 

absence   of   constitutional    or   congressional  Gerard's  Executors,  2  Howard,  127;  Going  v. 

provision  on  the  subject,  it  must  be  regulated  Emery,  16  Pick.  107  ;  Executors  of  Burr  v. 

by  the  principles  of  the  common  law,  if  they  Smith,  7  Verm.  241;  and  other  cases,  as  to 

are  pertinent  and  applicable."  the  doctrine  of  charitable  and  pious  uses  in 

*  Williams  v.  Williams,  4  Seld.  525,  553  ;  this  country. 

(a)  Sunday  Laws. — Christianity  is  not  a  part  of  the  common  law.  Bloom  v. 
Richards,  2  Ohio  N.  S.  387  (contract  made  on  Sunday).  Christianity  is  a  part  of  the 
common  law.  Shover  v.  State,  5  Eng.  259  (a  grocery  open  on  Sunday).  See  also 
Charleston  v.  Benjamin,  2  Strobh.  508 ;  Commonwealth  v.  Wolf,  3  S.  &  R.  48 ;  Fro- 
lichstein  v.  Mayor,  40  Ala.  725  (cases  of  Jews  working  on  Sunday)  ;  Specht  v.  Com- 
monwealth, 8  Penn.  St.  312  (case  of  a  Seventh-day  Baptist  working  on  Sunday) ; 
Voglesong  v.  State,  9  Ind.  112  ;  State  v.  Ambs,  20  Mo.  214  (cases  of  selling  liquor  on 
Sunday) ;  Lindenmuller  v.  People,  33  Barb.  548  (case  of  a  theatrical  exhibition  on 
Sunday). 

Blasphemy. — See  Commonwealth  v.  Kneeland,  20  Pick.  206,  per  Morton,  J.,  pp 
233-6  ;  State  v.  Chandler,  2  Harr.  553  ;  Updegraff  v.  Commonwealth,  11  S.  &  R.  394 
(cases  on  a  statute) ;  People  v.  Ruggles,  8  Johns.  225  (case  at  common  law). 

Bible  and  Religious  Teaching  in  Public  Schools. — See  Donahoe  v.  Richards,  38  Me. 
379 ;  Minor  v.  Board  of  Education,  &c.,  Supr.  Ct.  of  Cincinnati,  in  which  an  ordi- 
nance of  the  board  removing  the  Bible  from  the  public  schools  was  held  void  on 
general  grounds,  and  as  opposed  to  the  State  Constitution.  The  decision  of  the 
Superior  Court  in  this  case  has,  however,  lately  been  reversed  by  the  Supreme  Court 
of  Ohio,  but  not  yet  reported. 


CONSTITUTIONAL  LAW.  15 

to  see  in  the  progress  of  this  work,  the  statute  law  of  the 
United  States,  and  of  the  different  members  of  the  confederacy, 
form  a  vast  body  of  jurisprudence,  in  many  cases  complicated, 
peculiar  and  novel,  but  eminently  adapted  to  our  unprecedented 
situation,  and  of  equal  interest  for  the  citizen  and  the  lawyer. 

To  these  two  sources  of  municipal  law,  viz.,  common  arid 
statute  law,  must  be  added  in  America  a  third.  We  have 
thought  it  wise  to  set  limits  to  the  law-making  authority,  and 
by  the  direct  action  of  the  people  themselves  to  establish  cer- 
tain rules  and  principles  of  action  which  can  be  varied  by  no 
power  less  than  that  supreme  will  which  calls  the  legislator 
into  being.  In  other  words,  we  have  imposed  constitutional 
restraints  on  the  Legislature. 

Something  of  this  same  disposition  is  to  be  found  in  the 
annals  of  the  mother  country.  The  history  of  the  race  to  which 
the  people  of  America  belong,  in  all  their  struggles  for  the 
attainment  and  preservation  of  freedom,  shows  their  marked 
and  sedulous  care  in  obtaining  and  preserving  formal  acknowl- 
edgments and  records  of  their  rights  and  liberties,  muniments 
of  title,  as  they  might  in  technical  language  be  termed. 

So  early  as  the  1st  of  Richard  III,  Parliament  "  declared 
that  the  court  of  Parliament  is  of  such  authority,  and  the  people 
of  this  land  of  such  a  nature  and  disposition,  as  experience 
teacheth  that  manifestation  and  declaration  of  any  truth  or 
right  made  by  the  three  estates  of  this  realm  assembled  in  Par- 
liament, and  by  authority  of  the  same,  maketh,  before  all  other 
things,  most  faith  and  certain  quieting  of  men's  minds,  and 
removeth  the  occasion  of  doubts."* 

So,  the  barons  of  England  were  not  satisfied  with  humbling 
the  power  of  John.  They  exacted  and  obtained  the  execution 
of  the  great  Charter.  The  reformers  in  the  time  of  Charles  I 
demanded  his  assent  to  the  Petition  of  Right ;  and  the  throne 
of  England  now  rests  on  the  Bill  of  Rights,  the  fruit  of  the 
revolution  of  1688,  a  bill  prepared  by  the  Convention  Parlia- 
ment, in  its  own  emphatic  language,  "  as  their  ancestors  in  such 
cases  had  usually  done."f 

*  Cotton's    Abr.   of  Records,    713,  714,         f  Bill  of  Rights,  1  W.  and  M.  Sess.  2,  c.  2. 
quoted  in  Maddock's  Life  of  Somers,  i,  p.  294. 


16  CONSTITUTIONAL  LAW. 

These,  however,  are  all  but  parliamentary  enactments,  or 
regal  concessions,  intended  to  operate  as  checks  on  the  kingly 
prerogative.  They  furnish  no  safeguard  against  abuse  of  the 
legislative  authority. 

Our  ancestors  went  farther,  and  seeking  to  guard  against 
the  abuses  of  popular,  as  their  English  progenitors  did  against 
those  of  monarchical  power,  both  in  the  formation  of  the 
government  of  the  separate  States,  and  in  laying  the  foundation 
of  the  great  confederacy  of  the  Union,  they  carefully  asserted 
and  denned  those  individual  rights  which  not  even  the  law- 
making  power,  not  even  the  people  itself,  shall  be  permitted  to 
infringe.  But  this  is  not  the  proper  place  for  an  inquiry  into 
the  formation  of  written  Constitutions.  Interesting  as  that  in- 
vestigation would  be,  and  pregnant  with  interest  to  the  student 
of  history  and  the  lover  of  liberty,  it  is  foreign  to  my  present 
subject.  So  far,  indeed,  as  our  Constitutions  relate  merely  to 
political  organization,  they  are  entirely  beyond  the  limits  of 
this  work.  It  is  as  forming  a  system  of  written  limitations  or 
restraints  on  legislative  power  that  we  shall  have  to  consider 
them,  and  in  this  aspect  it  will  be  interesting  and  instructive  to 
study  their  operation,  to  compare  their  analogies,  and  to  observe 
their  interpretation.  For  the  present,  it  is  sufficient  to  remark, 
as  we  shall  learn  more  fully  hereafter  when  we  come  to  consider 
the  true  boundaries  of  legislative  and  judicial  authority,  that 
the  parliamentary  or  legislative  history  of  this  country  is  re- 
markable for  nothing  more  than  for  the  care  with  which  we 
have  endeavored  to  define  the  boundaries  of  the  various  powers 
which  in  the  aggregate  form  the  complex  machine  of  govern- 
ment, and  the  rigor  with  which  restraints  have  been  imposed 
by  the  people  itself  on  its  immediate  mandataries  and  agents. 
Such  are  some  of  the  most  prominent  functions  of  the  Constitu- 
tions of  the  several  States.  The  Constitution  of  the  United 
States,  designed  to  operate  on  State  sovereignties,  as  well  as  on 
the  people  directly,  partakes  of  the  character  of  a  league  as  well 
as  of  a  Constitution,  as  the  latter  term  is  more  strictly  used. 

Of  these  threegreat  components,  then,  CONSTITUTIONAL  LAW, 
STATUTE  LAW,  and  CUSTOMARY  or  COMMON  LAW,  the  jurispru- 


JUDICIAL   INTERPRETATION.  17 

dence  of  our  municipal  system  is  chiefly  composed.  Of  the  two 
first  of  these  this  volume  is  intended  to  treat.  They  are  entirely 
written  law,  governed,  like  all  branches  of  our  science,  by  rules 
peculiar  to  themselves,  and  subject  to  the  necessity,  incident  to 
the  imperfection  of  language,  of  constant  interpretation  and 
construction.  The  object  of  this  treatise  is  to  explain  the  tech- 
nical terminology  that  belongs  to  them,  to  give  their  classifica- 
tion, describe  their  incidents,  and  finally,  with  what  accuracy  I 
can  attain,  to  define  the  mode  of  their  application,  to  declare 
the  rules  of  interpretation  by  which  they  are  in  cases  of  doubt 
to  be  expounded,  and  to  illustrate  these  rules  by  the  light  of 
adjudged  cases. 

Both  constitutional  and  statute  law  have  two  great 
attributes  common  to  each  other,  which  render  it  indispensable 
to  examine  them  together.  They  are  both  written ;  in  cases  of 
doubt  they  are  botli  submitted  to  the  same  judicial  arbiter. 
It  is  plain  that  differences .  will  arise  in  the  construction  of 
written  laws.  The  history  of  private  discussions  and  of  public 
controversies,  of  contracts  and  of  treaties,  and  more  than  all 
the  religious  annals  of  our  race,  show  the  feebleness  and 
imperfection  of  language,  and  the  sad  facility  with  which  it 
lends  itself  to  the  various  interpretations  put  upon  jt  by 
ambition,  fraud,  or  even  honest  difference  of  judgment.  To 
settle  these  differences  in  regard  to  the  civil  conduct  of  mankind, 
some  tribunal  is  necessary.  On  this  point,  as  we  shall  see  more 
fully  hereafter,  various  systems  have  existed. 

The  earliest  body  of  jurisprudence  of  which  we  know  any- 
thing accurately,  is  the  law  of  the  twelve  tables  of  Rome ; 
wrung  from  the  Patrician  burghers  by  the  courage  and  constancy 
of  the  Plebeians,  it  was  intended  to  define  and  declare  the 
whole  body  of  rights,  public  and  private,  that  constituted  the 
existence  of  a  Roman  citizen,  and  for  nearly  a  thousand  years 
it  was  the  basis  of  their  system ;  but  during  that  time,  it  was 
vastly  expanded  and  altered  by  the  practice  of  interpretation. 
The  Roman  jurisconsults  construed  or  interpreted  the  written 
code  with  a  very  liberal  spirit ;  and  the  responsa  prudentium,  as 
we  know,  formed  one  of  the  leading  elements  of  the  law  as 
2 


18  JUDICIAL  INTERPRETATION. 

Justinian  compiled  it.*  When,  however  the  imperial  Con- 
stitutions had  subverted  the  freedom  of  the  republic  and  the 
independence  of  the  law,  the  despotic  dispositions  of  the  empire 
arrogated  to  the  sovereign  alone  the  power  of  interpreting  as 
well  as  of  making  laws.  Leges  condere  soli  imperatori  conces- 
sum  est,>  et  leges  interpretari  solo  dignum  imperio  esse  oportet.  f 

The  modern  civilians  adopted  the  same  maxim.  Ejus  est 
interpretari  legem  cujus  est  condere.  Such  was  the  system  under 
the  government  of  the  French  empire.  J 

The  terrible  absolutism  of  this  doctrine  found,  however, 
opposition,  or  at  least  encountered  doubt,  even  among  the 
continental  jurists ;  and  Voet,  in  his  commentaries  on  the 
Pandects,  discusses  at  length  the  question  whether  the  right  of 
interpretation  belongs  to  the  sovereign,  should  be  abandoned 
to  usage,  or  confided  to  the  judiciary.  | 

In  the  early  ages  of  the  English  system  it  appears  that  the 
line  between  the  judiciary  and  the  Legislature  was  not  dis- 
tinctly marked,  and  that  Parliament,  consisting  of  one  great 
chamber,  in  which  sat  both  Lords  and  Commons,  not  only  made, 
but  interpreted  the  law.^f  But  it  has  now  long  been  settled 
in  England  that  the  interpretation  of  statute  law  belongs  to 
the  judiciary  alone,  and  in  this  country  they  have  claimed  and 
obtained  an  equal  control  over  the  construction  of  constitutional 
provisions.**  This  treatise  is,  then,  devoted  mainly  to  a  con- 
sideration of  constitutional  and  statute  law,  and  of  the  control 
exercised  by  the  judiciary  over  it. 

It  is  plain  that  the  matter  is  of  great  moment.  On  the  one 
hand,  the  nature  of  the  case,  the  frequency  of  doubt,  the  impossi- 
bility of  recurring  to  the  Legislature  or  to  popular  sovereignties 
for  the  removal  of  difficulties,  and  the  general  analogies  of  our 

*  The  jmisprudentes,  "  though  they  pro-  |  Comm.  Lib.  i,  Tit.  iii,  de  legibus. 
fessed  only  to  interpret  the  twelve  tables,  not  ^  "  Originally  the  Houses  of  Lords  and 
to  make  laws,  their  notion  of  interpretation  Commons  sat  together.  The  courts  of  law 
was  so  wide  that  it  included  everything  were  clearly  subordinate  to  the  Parliament, 
which  could  be  brought  within  the  spirit  of  A  writ  of  error  lay  from  them  to  the  Par- 
any thing  which  the  twelve  tables  enacted."  liament,  and  they  were  accustomed  even  to 
*  "  The  responsci  prudentium  thus  came  to  consult  Parliament  before  they  decided  points 
be  enumerated  among  the  direct  sources  of  of  difficulty  and  importance." — Sir  J.  Camp- 
law." — Sanderef  Institutes,  Introd.  pp.  19  and  bell,  aryuendo,  in  Stockdale  v.  Hansard,  9  Ad. 
20.  and  Ell.  1  ;  see  post,  ch.  v. 

f  Cod.  Lib.  i,  Tit.  xiv,  de  legibus,  12.  **  Kent,  Part  iii,  Lee.  xx,  vol.  i.  p.  449,  et 

j  See    Toullier,  Tit.    Prel.    des    lois   en  seq. 
general,  section  x 


THE  GENERAL   SUBJECT.  19 

system,  require  the  power  of  the  judiciary  to  be  extended  over 
the  subject ;  while,  on  the  other  hand,  unless  their  authority  be 
very  carefully  exercised,  and  confined  within  strict  limits,  the 
boundary  between  the  Legislature  and  the  judiciary  would  be 
gradually  effaced,  and  the  most  valuable  parts  of  the  law-making 
power  practically  fall  into  the  hands  of  that  branch  of  the 
government  which  is  not  intended  to  have  any  share  whatever 
in  the  enactment  of  laws. 

Having  thus  endeavored  to  give  a  general  idea  of  the  various 
sources  of  our  jurisprudence,  and  of  the  principal  objects  of  this 
treatise,  we  proceed  now  to  a  more  particular  examination  of 
our  immediate  subject,  desiring,  however,  that  the  results  at 
which  we  have  thus  far  arrived  may  be  borne  in  mind :  That 
the  common  law  is  the  great  basis  of  both  English  and  American 
municipal  law ;  that  the  interpretation  or  construction  of  the 
written  law  belongs  to  the  judiciary ;  that  the  rules  governing 
the  application  of  statutes  may,  as  a  general  proposition,  be 
considered  the  same  in  both  countries,  but  that,  on  the  contrary, 
the  head  of  constitutional  law  is  wholly  peculiar  to  American 
jurisprudence. 

As  the  authority  of  Congress  is  subordinate  to  that  of 
the  Constitution  of  the  United  States,  and  that  of  each  LesHs- 

'  O 

lature  both  to  the  federal  charter  and  the  Constitution  of  its 
own  State,  it  is  plain  that  the  inquiry  of  the  American  student, 
in  all  new  cases,  must  be  directed  to  constitutional  provisions 
before  it  turns  to  the  statute  law.  The  prominent  question  in 
any  case  of  first  impression  growing  out  of  the  provisions  of 
written  law  will  usually  be  with  every  legal  mind,  Does  the 
alleged  right  interfere  with  any  constitutional  provision,  State 
or  federal  ?  And  it  might,  therefore,  appear  proper  first  to 
speak  of  constitutional  law;  but,  as  has  been  observed,  the 
basis  of  our  jurisprudence  is  the  English  system.  The  general 
rules  of  interpretation  are  the  same,  whether  applied  to  statutes 
or  Constitutions ;  and  as  Constitutions,  for  the  purpose  of  this 
work,  will  be  considered  mainly  in  the  light  of  restraints  or 
limitations  upon  legislative  power,  it  will  be  found  better  at 
the  outset  to  examine  those  rules  and  discuss,  those  doctrines 


20  THE  GENERAL   SUBJECT. 

common  to  tlie  legal  science  of  "both  countries.     I  shall  first, 
therefore,  consider  the  subject  of  statutes. 

It  will  be  remembered,  however,  that  my  leading  object  is 
not  to  give  the  actual  interpretation  of  particular  constitutional 
or  statutory  provisions.  This  would  require  a  work  of  vast 
magnitude,  and  would  lead  me  far  beyond  my  present  purpose. 
That  purpose  is  to  consider  the  rules  which  govern  the  applica- 
tion of  written  law,  to  exhibit  the  leading  principles  of  inter- 
pretation, and,  in  regard  to  Constitutions,  to  observe  their  anal- 
ogies and  study  their  general  operation.  The  construction  of 
special  provisions,  whether  of  statutes  or  Constitutions,  will  be 
carried  no  farther  than  shall  appear  to  be  necessary  for  a  com- 
plete understanding  of  the  subject. 

Before  discussing  the  subject  of  the  construction  of  statutes 
in  doubtful  cases,  it  is  necessary  first,  however,  as  I  have  said, 
to  understand  the  rules  which  govern  their  application  where 
no  doubt  arises.  Having  first  examined  their  division  and 
classification,  their  separate  parts  and  their  various  incidents, 
we  shall  be  then  better  prepared  to  understand  the  rules  which 
are  adopted  where  cases  of  difficult  or  doubtful  interpretation 
arise. 


CHAPTER    II. 

GENERAL  CLASSIFICATION  AND  DIVISION  OF  STATUTES. 

Division  of  Statutes. — In  England  divided  into  Ancient  and  Modern. — Division  in 
the  United  States. — Public  and  Private  Acts. — Declaratory  and  Innovating 
Statutes.  —  Affirmative  and  Negative  Statutes.  —  Remedial  Statutes.  —  Penal 
Statutes. — Repealing  Statutes. 

THOSE  who  desire  to  know  the  origin  and  history  of  the 
formation  of  statutes,  from  the  earliest  periods,  in  the  country 
from  which  our  legislation  derives  its  source  will  do  well  par- 
ticularly to  consult  Mr.  Dwarris'  very  valuable  work  on 
statutes.*  The  inquiry  involves  some  of  the  most  interesting- 
questions  connected  with  the  early  annals  of  England,  the 
power  of  the  Norman  Conqueror  and  of  his  first  successors,  the 
rise  and  progress  of  parliaments,  and  many  other  subjects 
equally  curious  and  attractive. 

For  our  present  purpose  it  is  sufficient  to  observe,  that  the 
original  term  for  all  laws  was  Assisce  or  Oonstitutiones  (rex 
precepit  vel  constituit} ;  and  among  the  earliest  monuments  of 
English  legislation  there  are  statutes  which  bear  the  traces  of 
a  great  council  assisting  the  king,  besides  ordinances,  grants, 
charters  and  patents  emanating  from  the  crown  alone.  The 
first  statutes  appear  to  have  been  enacted  upon  petitions  which 
were  presented,  discussed  and  acted  on  in  Parliament,  the 
statute  being,  at  the  end  of  each  Parliament,  drawn  up  by  the 
judges  and  entered  on  the  statute  roll.  This  was  found  subject 
to  great  irregularity  and  abuse,  and  finally,  in  the  time  of 
Henry  VI,  bills  were  in  the  first  place,  as  now,  drawn  up  and 

*  Treatise   on    Statutes,   by   Fortunatus  This  latter  part  has  been  republished  in 

Dwarris,   Kt.   and    W.    H.  Armyot,    second  the  ninth  volume  of  the  first  series  of  that 

edition,  1848.     The  first  volume  is  devoted  valuable  compilation,  the  Law  Library,  and  is 

to  the  origin  and  history  of  statutes,  and  the  familiarly  known  to  our  legal  scholars.     The 

course  of  proceedings  in   Parliament.     The  whole  work  has,  I  believe,  never  been  repub- 

second  volume  treats  of  the  construction  of  lished  in  this  country.     Barrington's  Obser- 

statutes,  their  division,  parts,  authority  and  vations  on  the  Statutes  is  also  full  of  curious 

incidents.  learning  on  the  same  subject. 


22  LANGUAGE   OF  OLD  STATUTES. 

presented  to  the  two  Houses.*  But  as  this  investigation  to  us 
would  be  interesting  mainly,  if  not  solely,  in  a  historical  and 
antiquarian  point  of  view,  I  shall  content  myself  with  this  brief 
notice  of  so  much  of  my  subject  as  is  entirely  peculiar  to  En- 
gland, and  proceed  at  once  to  the  enumeration  of  the  different 
classes  into  which  statutes  are  divided.  Here  we  shall  find  the 
basis  of  the  classification  to  be  derived  from  the  English  law. 

The  English  have,  however,  a  division  of  statutes  which  is 
unknown  to  us,  viz.,  into  ancient  and  modern.  The  earliest 
statutes  in  the  printed  collections  are  those  of  the  ninth  year 
of  Henry  III,  A.D.  1225.  The  statutes  from  Magna  Charta 
down  to  the  end  of  Edward  II,  1326  (including,  also,  some 
which,  because  it  is  doubtful  to  which  of  the  three  reigns  of 
Henry  III,  Edward  I,  or  Edward  II,  to  assign  them,  are  termed 
incerti  temporis),  compose  what  have  been  called  the  vetera 
statuta,  or  ancient  statutes;  those  from  the  beginning  of  the 
reign  of  Edward  III  (1327)  being  contradistinguished  by  the 
appellation  nova  statuta.  The  former  also,  from  some  acci- 
dental circumstance  of  collection  or  publication,  are  sometimes 
spoken  of  as  prima  aut  secunda  pars  veterum  statutorum.^  Of 
the  earlier  statutes  some  are  in  Latin,  some  in  French.  On  the 
accession  of  Richard  III  (1483)  the  laws  were  first  printed  and 
promulgated  in  English.  Since  the  time  of  his  successor, 
Henry  VII,  all  the  statutes  have  been  drawn  in  English.  J 

*  Dwarris  on  Statutes,  vol.  ii,  ch.  i.  be  enacted  in  Law  French,  till  the  reign  of 

f  Dwarris  pn  Statutes,  p.  460.  Richard  III,  when   they  first  appear  in  En- 

$  The  history  of  the  English  language  is  glish ;  and  so  tenacious  was  the  hold  that  the 

very  curiously  illustrated  by  the  history  of  language  of  France  had  acquired,  that  it  re- 

the  law.     As  late  as  the  middle  of  the  14th  mained  the  language  of  the  reports  till  the 

century,   all   the   oral  proceedings  in  open  time  of  the   Commonwealth.      Nor  did   the 

court  were  in  the  French  tongue,  when  by  Latin  disappear  from  the  records  till  the  4 

the  36th  Edward  III,  c.  xv  (1362),  the  En-  Geo.  II,  c.  26  (1731),  when,  the  oral  discus- 

glish  was  introduced  into  the  tribunals.    That  sions  and  reports  being  in  English,  the  final 

statute  recites  that  the  laws  of  England  are  triumph  of  the  language  was  achieved,  and 

disregarded  because  the  proceedings  in  court  Latin  was  prohibited  as  the  language  of  the 

are  in  French,  "  a  tongue  much  unknown  in  records  also.     It  appears  by  this,  that  for 

the  said  realm,"  so  that  clients  do  not  under-  nearly  300  years,  viz.,  from  the  36th  Edward 

stand  what  is  said  for  or  against  them ;  that  III  (1362),  to  the  time  of  the  Commonwealth, 

in  other  countries  the  laws   are  better  ob-  English  was  the  language  of  oral  discussion, 

served,  because  justice  is  done  in  the  vernac-  French  of  the  reports,  and  Latin  of  the  rec- 

ular ;    and  it  then  goes  on  to  declare  that  ords ;  French  also  being  mainly  the  language 

thenceforth  all  pleas  shall  be  pleaded,  showed,  of  the  statutes  from  1275,  or  thereabouts,  till 

defended,  answered,  debated,  and  judged  in  the   accession  of  Richard   III   (1483).     The 

the  English  tongue.    The   Latin  was,  how-  first  laws  in  the  English  statute  book  are  in 

ever,  by  the  same  statute,  preserved  as  the  Latin.     The  earliest  statute   in  the  French 

language  of  the  written  pleadings  and  of  the  language  is  the   Statutum   de   Scaccario,   51 

record.  Hen.  Ill  (A.  D.  1266);  and  it  is  remarkable 

The  statutes,  however,  still  continued  to  not  only  that  French  continued  to  be  used  as 


AMERICAN  DIVISION  OF   STATUTES. 


23 


In  the  early  periods  of  English  legislation,  all  the  statutes 
of  each  session  of  Parliament  were  consolidated  and  styled  one 
statute,  each  being  called  merely  a  separate  chapter.  In  the 
time  of  Henry  VIII,  it  first  became  usual  to  prefix  a  distinct 
title  to  each  particular  chapter  of  the  statute.* 

In  this  country  we  have  no  knowledge  of  the  division  of 
statutes  into  ancient  and  modern,  of  which  we  have  spoken. 
The  only  divisions  which  we  recognize  spring  from  the  authority 
to  which  the  statutes  owe  their  origin.  We  have 

The  Colonial  Statutes,  passed  by  the  governments  of  the  old  • 
thirteen   colonies,  before  the  authority  of  the  mother  country 
was  thrown  off: 

The  Acts  of  the  United  States,  passed  by  the  Federal 
Government : 

The  Laws  of  the  States,  passed  by  the  States  respectively ; 
and 

The  Acts  of  the  Territories,  passed  by  the  governments  of 
the  new  territories  before  they  are  admitted  into  the  Union  as 
States. 

We  shall  also  have  occasion  to  speak  of  the  municipal 
ordinances  of  our  cities,  some  of  which  are  quite  equal  in 
importance  to  the  acts  of  legislation  of  many  of  the  States.f 


the  parliamentary  language  after  it  had  been 
abolished  in  the  courts  of  justice,  viz.,  from 
the  36  Edward  III  (1362)  to  the  1st  of  Rich- 
ard  III  (1483),  but  still  more  that  it  should 
ever  have  been  the  language  of  the  laws. 
Barrington  says  there  is  no  other  instance  of 
any  country  in  Europe  permitting  their  laws 
to  be  enacted  in  a  modern  European  language. 
See  his  remarks  on  the  subject,  under  the 
head  of  the  Statutum  de  Scaccario,  51  Henry 
III,  A.  D.  1266,  p.  57. 

Fortesque,  writing  in  the  reign  of  Henry 
VI,  states  that  in  the  Universities  of  England, 
the  sciences  are  only  taught  in  Latin,  but 
that  the  law  is  taught  in  the  three  languages, 
English,  French,  and  Latin.  Legex  tcrrce 
illius  in  triplici  lingua  addiscuntur,  videlicet, 
Anylia,  Gallica,  et  Latina.  —  Fortesque  de 
La-udibus  Leg.  Angl.  c.  48. 

Chaucer's  slur  at  the  Anglo-French  in  com- 
mon use  in  his  time  is  well  known : 
"  And  Frenche  she  spake  full  fetously, 
After  the  scole  of  Stratforde  at  Bowe, 
For  Freuche  of  Paris  was  to  her  unknowe." 
Prologue  to  the  Prioress'  Tale. 
The  great  poet  showed  at  once  his  sense  and 
patriotism  by  using  the  English  tongue.    But 


so  slow  has  been  the  growth  of  that  strong 
and  nervous  speech  which  now  bids  fair  to 
assert  a  successful  claim  to  universal  domin- 
ion. See  Tyrwhitt's  Essay  on  Language  of 
Chaucer. 

*  Dwarris  on  Statutes,  vol.  2,  p.  462. 

f  Coke,  Inst.  116,  thus  enumerates  the 
"  divers  laws  within  the  realm  of  England." 

(1)  The  law  of  the  Crown. 

(2)  The  law  of  custom  of  Parliament. 

(3)  The  law  of  nature. 

(4)  The  common  law. 

(5)  Statute  law. 

(6)  Customs  reasonable. 

(7)  The  law  of  arms,  war,  and  chivalry. 

(8)  Ecclesiastical  or  canon  law. 

(9)  Civil  law  as  in  the  courts  of  the  con- 
stable and  marshal. 

(10)  Forest  law. 

(11)  The  lav,  of  marque. 

(12)  The  law  merchant. 

(13)  The  laws  and  customs  of  the  isles  of 
Jersey,  <fec. 

(14)  The  law   and  privilege  of  the  stan- 
naries. 

(15)  The  laws  of  the  east,  west,  and  middle 
marches — now  abrogated. 


24  PUBLIC   STATUTES. 

When  we  come  to  consider  statutes  not  as  to  their  origin, 
but  with  reference  to  their  subject-matter,  we  find  the  leading 
division  to  be  into 

Public  or  General,  and 

Private  or  Special. 

Public  or  General  Statutes  are  in  England,  those  which 
relate  to  the  kingdom  at  large.  In  this  country,  they  are  those 
which  relate  to  or  bind  all  within  the  jurisdiction  of  the  law- 
making  power,  limited  as  that  power  may  be  in  its  territorial 
operation,  or  by  constitutional  restraints.  Private  or  Special 
Statutes  relate  to  certain  individuals  or  particular  classes  of 
men.* 

Laws  which  concern  the  sovereign  or  heir  apparent,  all 
officers  in  general,  the  whole  spirituality,  all  lords  of  manors, 
such  also  as  relate  to  trade  in  general,  are  in  England  public 
acts.  A  statute  concerning  all  persons  generally,  though  with 
relation  to  a  special  or  particular  thing,  as  appeals,  assizes,  or 
woods  in  a  forest,  is  also  a  public  act. 

On  the  contrary,  such  statutes  as  concern  only  a  particular 

*  Mr.  Dwarris,  p.  463,  gives  the  English  public.     2.  Private  acts  printed  by  the  king's 

parliamentary  division  of  statutes  as  follows:  printer.     And  3.  Private  acts  not  printed. 

— "Tne   first   and  principal  division  is  into  "Every   local   and  personal  act  contains 

general  and  special,  public  and  private.     For  a  clause  declaring  that  '  it  shall  be  a  public 

the   convenience  of  citation  to   a   practicing  act,  and  shall  be  judicially  taken  notice  of  as 

lawyer,   the   printed   book   is  again  divided  such,' and  receives  the  royal  assent  as  a  public 

into  public  general  acts ;  local  and  personal  act." 

acts,    declared   public   and   to    be  judicially  Those   who  are  desirous  to  consider  the 

noticed ;  private   acts   printed  by  the  king's  subject  of  English  statutes,  and   the  ancient 

printer,  and  of  which  printed  copies  may  be  laws  more  particularly,  will  do  well  to  consult 

given    in    evidence;    and    private   acts   not  the   collections   of  English   statutes.     There 

printed.  are  several,  and  they  are  full  of  very  curious 

"  In   Parliament   are   adopted   other   dis-  and  interesting  matter. 

tinctions    resting     upon    different    grounds;  The   oldest   abridgment   of   the    English 

there,  all  bills  whatever  from  which  private  statutes,  comes  no  lower  than  the  31st  year 

persons,  corporations,  <fcc.,  derive  benefit,  are  of  Henry   VI   (1452),  and   is   understood   to 

subject  to  the  payment  of  fees,  and  such  bills  have  been  printed  in  1481.     It  is  known  as 

are  in  this  respect  denominated  private  bills ;  The  Old  Abridgment,  and  is  in  French, 

while   among   the  public  acts   are  included  There  are  one  or  two  other,  later  abridg- 

some   merely   personal,    as   acts  of  attainder  ments,    also   in   French.     The   first    English 

and   patent   acts.     Of  private  acts,  some,  as  abridgment  of  the   statutes,   is  that  of  John 

has  been  already  shown,  are  local,  as  inclos-  Rastell.     This   was  first  printed   in   the   19 

nre  acts,  and   some  personal,   viz.,   such    as  Henry  VIII  (1527). 

relate  to  naturalization,  names,  estates,  di-  Petyt's  great  Abridgment  of  the  Statutes 
vorces,  <fcc. ;  of  the  latter,  some  are  fiscal,  as  belongs  to  the  year  1542,  and  Pulton  pub- 
bills  for  compounding  debts  due  to  the  crown,  lished  an  Abstract  of  them  in  1577. 
<fec.  In  the  Lords,  the  term  '  private '  is  Mr.  John  Cay  published  his  valuable 
is  applied  technically  to  estate  bills  only,  all  Abridgment  of  the  Public  Statutes,  2  vols. 
other  bills  being  distinguished  as  local  and  folio,  in  1739 ;  and  in  1743-1765,  Mr.  Owen 
personal.  Ruffhead  published  his  Statutes  at  Large,  in 

"  After   they    have    received    the    royal  9  vols.  4to.     This  last  edition  is  perhaps  the 

assent,  private   bills    are   divided  into  three  most    convenient    and    satisfactory    for    the 

classes.     1.  Local  and  personal  acts,  declared  purposes  of  reference. 


PUBLIC  STATUTES.  25 

species,  thing,  or  person, — as,  bishops  only ;  acts  for  the  tolera- 
tion of  dissenters ;  relating  only  to  specific  traders ;  acts  relating 
to  only  one  particular  place  or  to  several  particular  towns,  or 
to  one  or  more  particular  counties,  or  to  colleges  only  in  the 
universities, — have  been  in  England  treated  as  private  acts.* 

In  this  country  the  disposition  has  been,  on  the  whole,  to 
enlarge  the  limits  of  the  class  of  public  acts,  and  to  bring 
wTithiu  it  all  enactments  of  a  general  character,  or  which  in  any 
way  affect  the  community  at  large.  The  subject  has  been  con- 
sidered, as  we  shall  hereafter  see,  with  reference  to  the  provisions 
of  the  federal  Constitution ;  and  it  has  been  held  that  the 
establishment  of  towns  and  counties  and  their  boundaries,  court 
houses,  jails,  bridges,  and  ferries,  are  all  matters  of  public 
policy,  and  acts  relating  to  them  are  of  course  public  acts.f 
So,  in  this  country,  it  has  been  intimated  that  acts  in  relation 
to  banks  are  to  be  held  public,  J  the  reasons  assigned  being 
that  their  bills  are  a  legal  tender  unless  specially  objected  to, 
and  their  charters  concern  the  currency  of  the  country.  So,  in 
Massachusetts,  acts  creating  public  corporations,  whether  sole 
or  aggregate,  are  public  statutes.  |  Acts,  too,  which  although 
affecting  only  a  particular  locality  apply  to  all  persons,  are 
public  acts.  So,  an  act  passed  for  the  survey  of  timber  in  the 

*  Dwarris  on   Statutes,  464 ;   Gilb.  Evi-  nature  (as,  if  it  concern  a  particular  mystery 

dence,  39,  40 ;  Phil,  on  Evidence,  238  ;  Com.  or  trade),  yet  if  a  forfeiture  be  thereby  given 

Dig.    Tit.  Parliament,  R.  6  ;  4  Rep.  76,   b. ;  to  the  king,  it  is  a  public  statute  (R.  v.  Buggs, 

Kirk  v.  Xowill,  1  T.  R.  118;  4  Rep.   79;  4  Skin.  429).     And  a  private  act,  if  recognized 

Co.  76,  a.  b.  79.  by  a  public  act,  must  afterwards  be  noticed 

Mr.  Dwarris,  vol.  ii,  p.  464,  gives  at  length  by   the   courts   as   a  general  law. — 2   Term 

the   distinction    in    England  between   public  Rep.  569. 

and  private  acts,  as  I  have  stated  it  in   the  "  A  general  or  public  act,  then,  regards 

text,  and  then  proceeds : —  the  whole  community  ;  special  or  private  acts 

"Thus  the  statute  21  Henry  VIII,  c.  13,  relate  only  to  particular  persons  or  private 

which    makes   the   acceptance  of    a    second  concerns." 

living   by   a  clergyman  an  avoidance  of  the  f   East   Hartford  v.  Hartford   Bridge  Co. 

first,  is  a  general  law,  because  it  concerns  all  10   Howard,   511;  Mills  v.   St.  Glair  Co.    8 

spiritual  persons  (4  Rep.  79).  Howard,  569;  Bass  v.  Fontleroy,  11  Texas, 

"  In  a  general  act  there  may  be  a  private  698 ;  Commonwealth  v.  Inhabitants  of  Spring- 
clause  (1  Salk.  168),  as  in  the  statute  3  Jac.  field,  7  Mass.  9. 

I,   c.   5   (10   Rep.   57,  b.),  the  clause  which  \  Bank  of  Utica  v.   Smedes,   3    Cowen, 

gives  the  benefices  of  recusants  in  particular  662 ;    2  R.    S.    374,  §  3.     In   Missouri   also, 

counties    to   the   University.     So    a   statute  Douglas  v.  Bank  of  Missouri,  1.  Missouri  R. 

which  concerns  the  public  revenue  is  a  public  20 ;  Young  v.  Bank  of  Alexandria,  4  Cranch, 

statute ;    but   some    clauses   therein    may,  if  384. 

they  relate  to  private  persons  only,  be  private  ;  ||   Portsmouth  Livery  Co.  v.  "Watson,  10 

for  a  statute  may  be  public  in   one  part  and  Mass.    91.     But   an   act   creating   a   private 

private  in  another. — 12  Mod.  249;  12  Mod.  banking  corporation,  was  held  not  to  be  of  a 

613;  Hob.  227;    Sid.  24.  "  general  character,"  in  Ferguson  v.  Miners' 

"  Yet,  although  a  statute  be  of  a  private  <fcc.  Bank,  3  Sneed  (Tenn.)  609. 


26  PRIVATE  STATUTES. 

county  of  Penobscot,  in  the  State  of  Maine,  *  and  an  act 
relating  to  the  preservation  of  a  particular  fish  in  Dunston 
river,  in  Massachusetts,-)-  were  each  held  public  acts. 

Although  a  statute  be  of  a  private  character,  yet  if  it  con- 
tain any  provisions  giving  penalties  to  the  State,  or  declares  or 
punishes  any  public  offence,  it  will  be  held  a  public  statute.  J 
Generally,  if  the  act  affects  in  any  way  public  interests,  it  will 
be  held  public.  So,  an  act  for  the  creation  of  a  work-house  in 
the  county  of  Middlesex,  and  for  the  discharge  of  certain  poor 
prisoners,  were  held  public  acts.|  If  a  private  act  be  recog- 
nized by  a  public  statute,  it  thereby  becomes  a  public  act.^f 

In  order  accurately  to  comprehend  the  distinction  between 
public  and  private  statutes,  it  is  important  to  understand  their 
incidents.  Courts  of  justice  are  bound,  ex  officio,  to  take  notice 
of  public  acts  without  being  fully  set  forth.  The  tribunals  are 
bound  to  give  them  full  effect,  so  soon  as  they  are  called  to 
their  attention.  They  cannot,  therefore,  be  denied  by  a  plea 
of  nul  tiel  record  /  and  the  existence  of  a  public  act  is  deter- 
mined by  the  judges  themselves,  who,  if  there  be  any  difficulty, 
are  to  make  use  of  ancient  copies,  transcripts,  books,  pleadings, 
or  any  other  memorial,  to  inform  themselves.** 

Of  private  acts,  on  the  contrary,  the  judges  are  not  bound 
to  take  notice  unless  they  be  previously  shown  and  pleaded. 
They  may,  consequently,  be  put  in  issue  and  tried  by  the 
record.  Such  parts  of  private  acts  as  are  essential  to  an  action 
or  defence,  must  be  specially  recited  in  plead ing.ff  The  result 
of  these  rules  is,  that  the  courts  always  decide  whether  an  act 
be  public  or  private. 

*  Pierce  v.  Kimball,  9  Greenleaf,  54.  v.  Porter,  1  Cranch  C.  C.  369 ;  Webb  v.  Bid- 

f  Burnham  v.  Webster,  5  Mass.  R.  268 ;  well,  15  Minn.  479. 

Commonwealth  v.  McCurdy,  5  Mass.  324.  **  Dwarris,  467 ;  Kent  Com.  v.  ii,  p.  460 ; 

|  Rex  v.  Bugg,  Skin.  4'29 ;  Case  of  Rog-  Trotter  v.  Mills,  6  Wend.  512 ;  Gardner  v. 

ers,  2  Greenleaf,  303  ;  Heridia  v.  Ayres,  12  The  Collector,  6  Wall.  499. 

Pick.  334.  ff  Dwarris,  p.  465.     It  is  probable,  how- 

|  Rex  v.  Pawlyn,  Sid.  209,  Bacon  Ab.  ever,  that  these  rules  are  materially  modified 
Stat.  F. ;  Jones  v.  Axen,  1  Lord  Raymond,  in  this  country,  in  those  States  which  have 
119.  [Aliter  of  an  act  of  general  pardon,  as  adopted  the  recent  innovations  on  the  corn- 
applying  only  to  offenders,  1  Ld.  Raym.  709,  mon-law  system  of  pleading.  The  Code  of 
while  the  statute  as  to  poor  prisoners  affected  Procedure  of  New  York  provides  (§  163) 
all  their  creditors  who  might  be  the  whole  "  that  in  pleading  a  private  statute,  or  a  right 
community. —  EDITOR.]  derived  therefrom,  it  shall  be  sufficient  to 

Tf  Rogers'  Case,  2  Greenl.   303  ;   Buller's  refer  to  such  statute  by  its  title,  and  the  day 

N.  P.  224,  Bacon  Ab.  Stat.  F.  note ;    U.  £.  of  its  passage,  and  the  court  shall  thereupon 

take  judicial  notice  thereof." 


PRIVATE    STATUTES.  -< 

Such  are  tlie  general  principles.  It  is  not  meant,  however, 
that  courts  of  justice  are  always  bound  to  take  notice  of  general 
acts,  and  that  parties  will  in  all  cases  have  the  benefit  of  them, 
unless  they  set  them  out  in  the  pleading,  and  show  that  they 
rely  on  them.  Thus,  it  is  necessary  to  set  out  and  rely  on  the 
statute  of  limitations  if  the  defendant  intends  to  have  the  ben- 
efit of, it.*  So  as  to  the  statute  against  usury,  although  under 
the  general  issue  in  assumpsit,  this  defence  might  be  set  up,  it 
could  not  in  debt  on  bond,  unless  specially  pleaded.f  In  En- 
gland, however,  by  the  pleading  rules  of  Hil.  Term,  4  William 
IV,  these  technical  distinctions  were  very  much  done  away, 
and  a  general  rule  declared,  that  if  a  good  cause  of  action  at 
common  law  appear  in  the  declaration,  the  defendant  must 
plead  any  statutable  illegality  in  the  contract  on  which  it  is 
founded.  J 

The  instances  which  we  have  been  here  noticing  relate,  it 
will  be  observed,  to  defences.  As  a  general  rule,  it  may  be 
safely  assumed  that  whether  the  ground  of  defence  arise  on  a 
public  or  private  statute,  it  must  be  so  far  stated  as  to  refer  to 
the  act,  and  apprise  the  plaintiff  of  the  resistance  which  he  is 
to  meet.  In  regard  to  declarations  or  complaints,  the  original 
distinction  holds  good,  the  courts  being  bound  to  take  notice 
of  and  give  effect  to  public  general  laws,  whether  pleaded  or 
not,  and  not  obliged  to  do  so  in  regard  to  private  laws,  unless 
distinctly  set  forth. 

Private  acts  do  not  bind  or  conclude  third  parties  or 
strangers ;  and  they  are  not  bound  to  take  notice  of  a  private 
act,  though  there  be  no  general  saving  clause  of  their  rights. 
This  is  a  rule  of  ancient  date,  and  has  been  steadily  adhered  to.  || 

In  England  it  is  held  that  words  of  a  statute  applying  to 
private  rights  do  not  affect  those  of  the  crown,  (a)  This  principle 

*  Dwarris    on    Statutes,  467 ;    Puckle  v.  $  Dwarris  on  Stat.  469,  for  rule  and  ex- 
Moor,   1   Vent.    191;  Lee  v.  Rogers,   1   Lev.  ceptions. 

110;  Gould  v.  Johnson,  2  Lord  Raym.  838.  fl  Lucy  v.  Levington,  1  Vent.  175;  Kent 

This  was  at  first  doubted.  Com.  i,  p.  459  ;  Dwarris,  vol.  ii,  p.  471  ;  Bar- 

f  Dwarris  on  Statutes,  467;  Hob.   72;   5  rington's  Case,  8  Rep.  138 ;  Jackson  v.  Catlin, 

Rep.  92;  Mason  v.  Fulwood,   1   Lutw.  168  ;  2  J.  R.  248;  s.  c.  8  J.  R.  406. 
Lord  Bernard  v.  Saul,  1  Strange,  499  ;  Bull 
N.  P.  152,  S.  C. 

(«.)  But  a  statute  enacted  for  a  public  purpose,  e.  g.,  the  suppression  of  fraud, 
will  bind  the  Government,  though  not  specially  named.     5  Rep.  14  b. ;  6  Inst.  681. 


28  DECLARATORY   STATUTES. 

is  well  established,  and  is  there  considered  indispensable  to  the 
security  of  the  public  rights.  It  has  been  recognized  also  in 
this  country ;  and  on  this  ground  it  was  held  in  Pennsylvania, 
in  regard  to  Windmill  Island,  in  the  Delaware  river  opposite 
Philadelphia,  though  it  was  claimed  under  a  legislative  grant, 
that  as  the  rights  of  the  commonwealth  were  not  ceded  by  the 
act,  no  title  was  acquired  as  against  the  State.*  But  in  this 
country  generally,  I  should  doubt  whether  this  construction 
could  be  safely  assumed  as  a  universal  rule.  The  English 
precedents  are  based  on  the  old  feudal  ideas  of  royal  dignity 
and  prerogative ;  and  where  the  terms  of  an  act  are  sweeping 
and  universal,  I  see  no  good  reason  for  excluding  the  Govern- 
ment, if  not  specially  named,  merely  because  it  is  the  Govern- 
ment. 

The  next  great  division  line  to  which  our  attention  should 
be  directed,  is  that  between  those  statutes  which  simply  de- 
clare or  explain  the  law  or  the  right  as  it  stood  previous  to  the 
statute,  and  those  which  introduce  new  legislative  provisions. 
The  former  are  termed  Declaratory  /  for  the  latter,  no  general 
phrase  has  been  adopted.  For  want  of  a  better  term,  I  venture 
to  call  them  Innovating,  or  introductive  of  new  matter. 

It  will  be  borne  in  mind  that  the  earliest  legislators  found 
a  great  body  of  law  established  under  cover  and  color  of  cus- 
tom. Such  rules  are  now  growing  up  every  day  around  us. 
When  the  attention  of  the  law-making  power  is  turned  to  new 
subjects,  and  a  law  is  enacted  in  regard  to  them,  defining  rights 
or  imposing  prohibitions  which  are  new  on  the  statute  book,  it 
often  becomes  a  question  whether  the  new  law  is  declaratory 
of  the  old,  or  whether  it  is  intended  to  introduce  any  new 
principle.  In  this  latter  case,  as  I  have  said,  for  want  of  a 
settled  terminology,  I  call  it  innovating.  Thus,  for  instance,  to 
give  an  idea  of  a  declaratory  act,  an  old  English  law,  25  Ed- 
ward III,  2,  De  vatis  ultra  mare,  recites,  "Because  that  some 
people  be  in  doubt  if  the  children  born  in  parts  beyond  the 
sea,  out  of  the  ligeance  of  England,  should  be  able  to  demand 
any  inheritance  within  the  same  ligeance  or  not,"  and  then 
goes  on  to  enact  that  the  children  of  subjects  born  abroad 

*  Jones  v.  Tatham,  20  Penn.  R.  399. 


AFFIRMATIVE    STATUTES.  29 

be  deemed  liege  subjects  of  the  English  crown.  And  it  has 
been  held  that  this  does  not  establish  any  new  rule,  but  that 
the  act  was  a  merely  declaratory  statute,  and  that  the  rule  was 
the  same  at  common  law.* 

Declaratory  acts,  says  Mr.  Dwarris,f  are  made  when  the  old 
custom  of  the  kingdom  is  almost  fallen  into  disuse,  or  become 
disputable,  in  which  case  the  Parliament  thinks  proper  in  per- 
petuum  rei  testimonium,  and  for  avoiding  all  doubts  and  diffi- 
culties, to  declare  what  the  common  law  is  and  ever  hath  been. 
Declaratory  acts  are  also  passed  to  explain  doubts  in  previous 
statutory  provisions,  and  they  are  then  what  the  old  writers  on 
the  Roman  law  called  acts  of  authentic  interpretation. 

A  very  nice  question  arose  in  regard  to  declaratory  statutes 
and  their  effect.  The  old  rule  was,  that  a  custom  could  be 
alleged  or  prescribed  against  the  common  law ;  that  is  to  say, 
although  the  common,  law  prohibited  a  particular  act,  yet  as 
the  common  law  is  but  custom,  if  particular  and  positive  evi- 
dence could  be  shown  of  the  antiquity  of  the  practice  of  the 
act  complained  of,  the  custom  might  be  set  up  in  defence,  and 
would  prevail.  But  if  a  statute  be  passed  declaratory  of  the 
common-law  rule,  and  prohibit  the  act  in  question  by  positive 
enactment,  can  the  particular  custom  still  be  alleged?  This 
seems  so,  if  the  statute  be  in  affirmative  terms ;  but  if  in  nega- 
tive terms,  whether  declaratory  of  the  common  law  or  intro- 
ductive  of  a  new  law,  -it  seems  that  no  prescription  or  custom 
can  be  set  up  against  \i.% 

This  leads  us  to  the  consideration  of  the  division  of  statutes 
into  affirmative  and  negative,  terms  which  readily  explain 
themselves. 

Affirmative  Statutes  are  statutes  passed  in  the  affirmative ; 
and  it  has  been  held  with  that  reverence  for  the  ancient  com- 
mon law  which  characterizes  the  early  decisions  of  the  English 
courts,  that  a  statute  containing  a  mere  affirmative  provision, 
without  any  negative  expressed  or  implied,  does  not  alter  any 

*  Dyer's  Reports,  224  a. ;  Bacon  v.  Bacon,  \  Dwarris  on  Statutes,  p.  475,  477 ;  Lord 

Cro.  Car.  601 ;  Doe  dem.  Thomas  v.  Acklam,  Lovelace's  Case,  W.  Jon.  270;  Jones  v. 

2  B.  and  Cres.  779;  Lynch  v.  Clarke,  1  Sandf.  Smith,  2  Bulst.  36;  King  v.  Bishop  of  Lon- 

Ch.  R.  583,  660;  2  Kent  Com.  50,  51.  don,  Shower,  420. 

f  Vol.  ii.  p.  473. 


30  AFFIRMATIVE   STATUTES. 

common-law  rule  existing  in  regard  to  its  subject-matter  before 
the  statute.  Thus,  by  the  43  Edward  III,  c.  ii,  it  was  enacted 
"  that  the  panel  of  assize  shall  be  arrayed  four  days  before  the 
day  of  assize ;"  yet  if  this  be  done  two  days  before  the  day  of 
assize,  it  is  good,  for  two  days  are  sufficient  at  common  law, 
and  when  the  statute  is  affirmative  it  does  not  toll  the  common 
law.*  So,  it  is  said  that  a  statute  authorizing  a  tenant  in  fee 
simple  to  lease  for  twenty-one  years,  would  not  restrain  him 
from  making  a  lease  for  sixty  years ;  for  this  power  he  had  at 
common  law,  and  there  are  no  negative  words,  f  So,  where  a 
remedy  is  given  by  an  affirmative  statute,  if  a  remedy  pre- 
viously existed  at  common  law,  and  is  not  prohibited  by  ex- 
press words,  it  is  not  taken  away,  but  the  party  has  his  elec- 
tion.!}; Thus,  it  has  been  held  in  this  country,  that  where  a 
statute  authorizing  the  erection  of  a  mill-dam,  provided  a  sum- 
mary mode  of  appraising  and  paying  the  damages  resulting 
from  such  erection,  that  the  common-law  redress  by  action 
nevertheless  still  remained.  |  If,  on  the  other  hand,  the  statute 
does  not  merely  affix  a  new  penalty  but  introduce  new  rights, 
then  there  can  be  no  doubt  that  the  statutory  remedy  must  be 
strictly  followed.^"  If  a  new  power  be  given  by  an  affirmative 
statute,  to  a  certain  person,  by  a  particular  designation, 
although  it  be  an  affirmative  statute,  still  all  other  persons  are 
in  general  excluded  from  the  exercise  of  the  power,  since  ex- 
pressio  unius  est  exclusio  alterius.  Thus,  if  an  action  founded 
upon  a  statute  be  directed  to  be  brought  before  the  justices  of 
Glamorgan  in  Sessions,  it  cannot  be  brought  before  any  other 
person  or  in  any  other  place.**  So  by  the  Scotch  law,  "  stat- 
utory provisions  cannot  be  supplied  by  '  equipollents.'  "ff  But 
the  designation  of  a  certain  person  to  whom  a  new  power  is 
given,  does  not  exclude  another  person  who  was  by  a  precedent 
statute  authorized  to  do  it,  from  doing  the  same  thing.JJ 

*  Dwarris,  p.  474  ;  2  Inst.  200 ;  Bro.  Parl.  If  Lang  v.  Scott,  1  Black,  Ind.  405  ;  Almy 

pl.  70.  v.  Harris,  5  J.  R.  175. 

f  Dwarris,  p.  475.  **  11  Rep.  59,  Foster's  Case,  64. 

i  Dwarris,  p.  474.  f  f  Alison's  Practice. 

1  Crittenden  v.  Wilson.  5  Cow.  165.     See          {\  11  Rep.  39,  Foster's  Case,  Ib.  64  ;  Dwar- 

also,  Livingston  v.  Van  Ingen,  9  J.  R.  507 ;  ris,  p.  478. 
Barden  T.  Crocker,  10  Pick.  383. 


NEGATIVE   STATUTES.  31 

Negative  Statutes  (a)  are  so  called  because  they  are  penned 
in   negative   terms, — as   the  statute  of  Marlbridsre,   which  is 

o  /  o    / 

JVon  ideo  puniatur  dominus  per  redemptionem  /"  and  Magna 
Charta,  "  Nullus  capiatur  aut  imprisonetur"  In  regard  to 
these,  the  rule  is  that  if  a  subsequent  statute  contrary  to  a  for- 
mer, have  negative  words,  it  shall  operate  as  a  repeal  of  the 
former ;  and  a  negative  statute  controls  and  takes  away  any 
common-law  right  or  remedy  previously  existing.*  "  The  dif- 
ferent operation  of  affirmative  and  negative  statutes,"  says  Mr. 

*  Bro.  Parl.  pi.  72. 

(*)  Affirmative  implying  a  Negative. — If  a  thing  is  limited  to  be  done  in  a  partic- 
ular form  or  manner,  it  excludes  every  other  mode,  and  affirmative  expressions 
introducing  a  new  rule  imply  a  negative.  District  Township,  &c.  v.  Dubuque,  7 
Clarke  (la.)  262 ;  New  Haven  v.  Whitney,  36  Conn.  373.  A  provision  that  asso- 
ciates shall  become  a  corporation  when  a  certain  certificate  is  filed,  excludes  corpo- 
rate powers  at  any  preceding  time.  Childs  v.  Smith,  55  Barb.  45.  A  grant  of  lands 
to  Indians,  prescribing  how  they  may  sell,  prohibits  any  other  mode  of  sale.  Smith 
v.  Stevens,  10  Wall.  321.  But  a  power  in  a  charter  authorizing  directors  to  mort- 
gage the  corporate  franchises  to  secure  bonds,  does  not  negative  other  methods  of 
securing  them  Uncas  Nat.  B'k  v.  Rith,  23  Wise.  339 ;  nor  does  an  affirmative  stat- 
ute giving  the  court  power  to  authorize  guardian  to  sell,  etc.,  show  that  he  had  not 
the  right  to  sell  without  such  license.  Wallace  v.  Holmes,  9  Blatch.  C.  C.  65. 

Expressio  unius. — Where  a  statute  assumes  to  specify  the  effects  of  a  certain  pro- 
vision, it  is  to  be  taken  that  no  others  were  intended.  Perkins  v.  Thornburgh,  10 
Cal.  189;  as  e.  g.  where  a  statute  has  undertaken  to  enumerate  the  cases  in  which  in- 
terest may  be  recovered.  Watkins  v.  Wassell,  20  Ark.  410.  In  Pembroke  v.  Epsom, 
44  N.  H.  113,  from  a  proviso  saving  pending  suits,  it  seems  to  have  been  inferred 
that  existing  causes  of  action  were  also  saved.  Where  a  grant  contained  several  re- 
strictions, and  a  subsequent  amendatory  statute  gave  the  franchise  in  general  terms, 
and  repealed  all  inconsistent  acts,  with  a  saving  clause  as  to  one  of  the  restrictions, 
it  was  held  that  all  the  other  restrictions  were  repealed.  McRoberts  v.  Washburn, 
10  Minn.  23.  Where,  in  the  body  of  a  Constitution,  it  is  provided  that  certain  speci- 
fied officers  shall  hold  until  successors  are  chosen  and  qualified,  but  there  is  no  gen- 
eral provision  to  that  effect,  a  similar  general  provision  as  to  holding  over,  found  in 
the  schedule  to  the  Constitution,  was  applied  only  to  officers  in  office  at  the  adoption 
of  the  Constitution.  State  v.  Taylor,  15  Ohio  N.  S.  137.  But  if  there  is  some  special 
reason  for  mentioning  one,  and  none  for  mentioning  the  other,  the  absence  of  any 
mention  of  the  latter  will  not  operate  as  an  exclusion.  Brown  v.  Buzan,  24  Ind.  194. 
A  provision  in  a  statute  that  a  failure  to  give  a  prescribed  notice  shall  not  invalidate 
an  election,  does  not  imply  that  all  the  other  prescribed  formalities  must  be  com- 
plied with  in  order  that  the  election  shall  not  be  void.  Taylor  v.  Taylor,  10  Minn. 
107. 

The  enumeration  of  certain  acts  which  shall  be  taken  as  an  appearance  in  a 
cause  was  held  not  to  exclude  other  methods  of  appearing.  State  v.  McCullough,  3 
Nev.  202.  And  see  Leake  v.  Blasdel,  6  Nev.  40 ;  Commonwealth  v.  Cancannon,  3 
Brewst.  344 ;  People  v.  Ingham  County,  20  Mich.  95,  103. 


32  REPEALING   STATUTES. 

Dwarris,*  is  thus  illustrated  : — "  If  a  statute  were  to  provide 
that  it  should  be  lawful  for  tenant  in  fee  simple,  to  make  a 
lease  for  twenty-one  years,  and  that  such  lease  should  be  good, 
this  affirmative  statute  could  not  restrain  him  from  making  a 
lease  for  sixty  years ;  but  the  lease  for  twenty-one  years  would 
be  good,  because  it  was  good  by  the  common  law,  and  to  re- 
strain him  it  ought  to  have  words  negative, — as  that  it  shall 
not  be  lawful  for  him.  to  make  a  lease  for  above  twenty-one 
years;  or,  that  a  lease  for  more  shall  not  be  good."  So,  an 
affirmative  statute  does  not  repeal  a  precedent  affirmative  stat- 
ute, and  if  the  substance  of  both  may  stand  together,  they 
should  both  be  enforced.  So,  the  statute  23  Elizabeth,  c.  i, 
which  gave  .£20  per  month  against  any  recusant,  did  not  take 
away  the  penalty  of  12d  for  every  Sunday,  given  by  statute  1 
Elizabeth,  c.  ii.f  The  next  head  is  that  of 

Remedial  Statutes. — Remedial  acts  are  those  made  from 
time  to  time  to  supply  defects  in  the  existing  law,  whether 
arising  from  the  inevitable  imperfection  of  human  legislation, 
from  change  of  circumstances,  from  mistake,  or  any  other 
cause.  The  object  is  sometimes  effected  by  imposing  restric- 
tions, in  which  case  the  statute  is  a  restraining  or  disabling 
statute  ;  sometimes  by  granting  powers,  in  which  case  it  is .  an 
enabling  or  enlarging  statute.  J 

Penal  Statutes. — Penal  statutes  are  acts  by  which  a  forfeit- 
ure is  imposed  for  transgressing  the  provisions  of  the  act.  A 
penal  law  may  also  be  remedial,  and  a  statute  may  be  penal  in 
one  part  and  remedial  in  another.  ||  We  shall  have  occasion 
hereafter  to  notice  the  incidents  of  penal  statutes,  but  we  may 
here  mention  the  general  principle  that  a  penalty  implies  a 
prohibition,  though  there  are  no  prohibitory  words  in  the 
statute.^ 

Repealing  Statutes  are  revocations  of  former  statutory  enact- 
ments ;  **  and  the  effects  of  the  repeal  of  laws,  we  shall  have 

*  Page  475.  -viz.,  Stat.  32  Henry  VIII,  c.  xxxviii,  was  an 

j  Dwarris,  474,  11  Rep.  63.  enabling  statute.  The  Stat.  13  Elizabeth,  c. 

|  Dwarris,  p.  478.  x,  which  afterwards  limited  that  power,  is  on 

In  illustration  of  this  decision  and  dis-  the  contrary  a  disabling  statute.'' — Dwarris, 

tinction,  Mr.  Dwarris  says :  "  A  statute  which  p.  479. 

gave  bishops  and  other  sole  ecclesiastical  cor-  ||    1  Wils.  126. 

porations  (except  parsons  and  vicars)  a  power  \  Griffith  v.  Wells,  3  Denio,  226. 

of  leasing  which  they  did  not  possess  before,  **  Mr.  Dwarris  says,  p.  478:  "  Repeal  acts 


CONFLICT  OF   LAWS.  33 

occasion  to  notice  hereafter,  when  we  come  to  speak  of  the 
Incidents  of  Statutes.* 

It  may  be  useful  to  close  this  branch  of  our  subject  by 
stating  briefly  the  division  of  statutes  according  to  the'  con- 
tinental jurists,  with  a  brief  sketch  of  their  general  nature  and 
distinctive  qualities.  But  it  is  necessary  to  premise,  that  by 
statutes  the  civilians  do  not  mean  merely  the  positive  legisla- 
tion which  in  England  and  America  is  known  by  the  same 
name, — viz.  Acts  of  Parliament  and  of  other  legislative  bodies, 
as  contradistinguished  from  the  common  law, — but  the  whole 
municipal  law  of  the  State,  from  whatever  source  emanating. 
Sometimes  the  word  is  used  by  civilians  in  contradistinction  to 
the  Roman  Imperial  law,  which  they  sometimes  style,  by  way 
of  eminence,  "  The  Common  Law,"  since  it  constitutes  the  gen- 
eral basis  of  the  jurisprudence  of  all  continental  Europe,  modi- 
fied and  restrained  by  local  customs  and  usages,  and  positive 
legislation.  Paul  Voet  says,  "  Sequitwr  jus  particulare,  seu  non 
commune,  quod  uno  vocabulo  usitatissimo,  STATUTUM  dicitur, 
quasi  statum  publicum  tuens"  Merlin  says,  "  Oe  term  statut, 
s1  applique  en  general  d  toutes  sortes  des  lois  et  des  reglements  ; 
cliaque  disposition  d?une  loi  est  un  statut, — qui  per  met,  ordonne, 
ou  defend quelque  chose" 

Statutes  are  divided  by  the  civilians  into  personal,  real,  and 
mixed.  Personal  statutes  are  those  which  act  upon  the  person 
directly,  as  their  subject  or  object,  fixing  and  determining  its 
state  and  condition,  as  with  reference  to  birth,  legitimacy,  free- 
dom, majority,  &c.,  without  mentioning  things  or  property, 
except  incidentally.  These  personal  statutes  are  of  general 
force  and  obligation  everywhere. 

Real  statutes  are  those  which  have  for  their  direct  object  or 
motive,  things  or  property,  whether  movable  or  immovable, 
and  independently  of  the  personal  state  of  the  proprietor  or 

are  revocations  of  former  statutory  laws  au-  pealing    the   general   bankrupt  law  of   the 

thorizing  and  permitting  the  parties  to  whom  United  States. 

the  repeal  extends,  to  forbear  from  acts  which  *  Mr.  Dwarris,  in  his  very  valuable  work, 

they  were  before  commanded  to  do.     Hence  makes  one  class  of  statutes  to  consist  of  those 

they  are  often   named  permissive  laws,  or,  which  are  void.     It  seems  hardly  proper  to 

more  briefly,  permissions."     This,  however,  make  a  class  of  statutes  which  are  in  the  eye 

seems  a  very  narrow  definition  of  a  repeal  of  the  law  no  statutes  at  all ;  and  we  shall 

act.     It  would  be  difficult,  for  instance,  to  consider  this   subject  under    another   head, 

find  any  permission  contained  in  the  act  re-  when  speaking  of  the  restrictions  upon  Legis- 
lative Power. 
3 


34  EARLY  COLONIAL   LEGISLATION. 

possessor ;  as  laws  which  concern  the  disposition  which  one 
may  make  of  what  belongs  to  him,  while  living  or  by  his  will. 

Mixed  statutes  affect  both  persons  and  property,  and  con- 
stitute a  third  class,  which  it  has  been  found  necessary  to 
admit,  there  being  so  many  statutes  which  are  neither  purely 
personal  nor  purely  real,  or  in  regard  to  which  it  is  doubtful 
whether  the  personal  or  real  characteristics  prevail.  The  rules 
for  distinguishing  the  several  kinds,  and  the  application  of 
these  rules  to  the  particular  case,  are  much  discussed  and  con- 
troverted by  the  civilians,  who  have  treated  the  subject  with 
their  accustomed  learning,  acumen,  and  metaphysical  subtlety. 
In  Us  definiendis  mirum  est  quam  sudant  doctores. 

But  this  subject  has  been  so  fully  discussed  in  that  which 
is  perhaps  the  greatest  monument  of  the  intellect  and  the 
labors  of  the  late  Mr.  Justice  Story,  that  I  will  here  only  refer 
to  the  "CONFLICT  OF  LAWS." 


It  would  encumber  the  text  too  much  to  go  at  length  into  any  antiquarian  dis- 
cussion as  to  the  history  of  the  early  legislation  of  this  country ;  but  I  cannot  refrain 
from  giving,  in  this  note,  a  brief  sketch  of  the  mode  in  -which  the  first  laws  of  at 
least  one. of  the  colonies  were  framed. 

The  State  of  Massachusetts  has,  with  a  commendable  liberality  and  respect  for 
its  early  history,  recently  (1853-1855)  published,  in  six  handsome  4to.  volumes,  the 
legislative  records  of  the  colony  from  1628  to  1686.  "  Records  of  the  Governor  & 
Company  of  the  Massachusetts  Bay,  in  New  England,  printed  by  order  of  the  Legis- 
lature, edited  by  Nathaniel  B.  Shurtleff."  They  are  extremely  valuable,  and  throw 
freat  light  not  only  on  the  character  but  the  formation  of  the  laws  of  the  infant 
tate.  The  early  and  constant  attention  to  the  subject  of  legislation,  the  care  shown 
and  the  modes  devised  to  secure  a  representation  of  all  the  interests  to  be  provided 
for,  the  intermixture  of  the  "  Word  of  God  "  with  their  temporal  administration, 
and  the  eminently  equal  and  republican  nature  of  the  whole  proceedings,  are  of 
great  interest  with  reference  to  the  formation  of  some  of  the  earliest  institutions  of 
our  empire. 

The  charter  of  Charles  I  to  Sir  Henry  Rosewell  and  others,  founded  on  the 
cession  from  the  Plymouth  Council,  and  creating  the  corporation  called  "  The 
Governor  &  Company  of  the  Mattachusett  Bay  in  Newe  England,"  was  granted  in 
March,  1628.  It  contained  the  following  provision  as  to  the  making  of  laws  for  the 
new  State.  (Colony  Records,  1,  p.  16.)  "And  wee  doe  of  our  further  grace,  certen 
knowledg,  and  mere  mocon,  give  &  graunt  to  the  Saide  Governor  &  Company  and 
their  successors-,  that  it  shall  and  will  be  lawful  to  and  for  the  Governor,  or  Deputie 
Governor  &  such  of  the  Assistants  &  Freemen  of  the  saide  Company  for  the  Tyme 
being  as  shall  be  assembled  in  any  of  their  Generall  Courtes  aforesaide,  or  in  any 
other  Courtes,  to  be  specially  sumoned  and  assembled  for  that  purpose  or  the  greater 
part  of  them,  (whereof  the  Governor  &  Deputie  Governor  and  six  of  the  assistants 
to  be  alwaies  seaven)  from  tyme  to  tyme  to  make,  ordeine  &  establishe  all  manner  of 
wholesome  and  reasonable  orders,  Lawes  Statutes  &  ordinnces,  direccons  &  instruc- 
cons  not  contrarie  to  the  lawes  of  this  our  realme  of  England  as  well  for  setting  of 
the  formes  &  ceremonies  of  government  &  magistracy  fitt  &  necessary  for  the  said 
plantacon  &  the  inhabitants  there  &  for  nameing  &  stiling  of  all  sortes  of  officers 
both  superior  and  inferior  which  they  shall  finde  needefull  for  that  government  and 


EARLY  COLONIAL  LEGISLATION.  35 

plantacon  &  the  distinguishing  &  setting  forth  of  the  severall  duties  powers  and 
lymytte  of  every  such  office  &  place  and  the  formes  of  such  oathes  -warrantable  by 
the  lawes  &  statutes  of  this  our  realme  of  England  as  shalbe  respectivelie  ministred 
unto  them  for  the  execucon  of  the  said  severall  offices  and  places,  as  also  for  the 
disposing  and  ordering  of  the  elecons  of  such  of  the  said  officers  as  shallbe  annuall 
&  of  such  others  as  shallbe  to  succeede  in  case  of  death  or  removeall  &  ministring 
the  said  oathes  to  the  newe  elected  officers  and  for  imposicons  of  lawfull  fynes  & 
mulcte,  imprisonment  or  other  lawfull  correcon  according  to  the  course  of  other 
corporacons  in  this  our  realme  of  England  and  for  the  directing  ruling  and  dispose- 
ing  of  all  other  matters  &  thinges  whereby  our  said  people  inhabitante  there  maie  be 
soe  religiously  peaceablie  &  civilly  governed  as  their  good  life  and  orderlie  conver- 
sacon  maie  wynn  and  incite  the  natives  of  country  to  the  knowledg  and  obedience 
of  the  onlie  true  God  &  Saviour  of  mankinde  &  the  Christian  fayth  which  in  our 
royal  intencon  and  the  adventurers  free  profession  is  the  principall  end  of  this 
Plantacon." 

At  a  meeting  of  the  company,  held  at  London  on  the  30th  of  April,  1629,  the 
Governor  and  company  were  directed  "  to  make  ordeyne  and  establish  all  manner  of 
wholsome  &  resonable  orders,  laws,  statutes,  ordinances,  directions  &  instrucktyons 
not  contrary  to  the  lawes  of  the  Realme  of  England  ffor  the  present  gouernment 
of  our  plantacon  and  the  inhabitants  residinge  within  ye  lymitts  of  our  Plantacon ; 
a  copy  of  all  which  orders  is  from  tyme  to  tyme  to  bee  sent  the  Comp.  in  London." 
—  Colony  Records,  i,  p.  38. 

This  charter  created  a  mere  commercial  company,  but  in  1630  the  seat  of  govern- 
ment of  the  association  was  transferred  to  the  Colony.  Within  four  years,  says  Mr. 
Bancroft,  it  was  determined  that  the  whole  body  of  the  freemen  should  be  convened 
to  elect  the  magistrates  ;  and  that  to  them,  with  the  deputies  of  the  several  towns, 
the  powers  of  legislation  should  be  intrusted.  And  thus,  in  the  historian's  expressive 
language,  "the  trading  corporation  was  become  a  representative  Democracy." — 
Bancroft,  i,  p.  365. 

I  find,  however,  under  date  of  19th  October,  1630,  the  following  entry.  If  this 
be  the  change  to  which  Mr.  Bancroft  refers,  it  was  one  of  the  first  steps  taken  after 
the  transfer  of  the  seat  of  government  to  this  country. 

At  a  general  court  holden  at  Boston  the  19th  of  October,  1630,  "it  was  ppounded 
if  it  were  not  the  best  course  that  the  ffreemen  should  have  the  Power  of  chuseing 
Assistants  when  there  are  to  be  chosen  &  the  Assistants  from  amongst  themselves  to 
chase  a  Gounr.  &  Deputy  Gounr.  whoe  with  the  Assistants  should  have  the  power  of 
makeing  lawes  and  chuseing  officers  to  execute  the  same.  This  was  fully  assented 
unto  by  the  gen' all  vote  of  the  People  and  erreccon  of  hands."—  Colony  Records, 
i,  p.  79. 

A  collection  of  the  orders  or  laws  very  soon  became  a  subject  of  consideration. 
On  the  4th  March,  1634,  Winthrop  and  Bellingham  appointed  a  committee  to  pre- 
pare a  revision  of  "  all  orders  already  made,"  and  report  to  the  next  general  court. — 
(7.  JKA,  p.  137. 

On  the  6th  May,  1635,  the  Governor,  Deputy  Governor,  Mr.  Winthrop  and  Mr. 
Dudley  "  are  deputed  by  the  court  to  make  a  Draught  of  such  Laws  as  they  shall 
iudge  needefull  for  the  well  ordering  of  the  plantacon  &  to  psent  the  same  to  the 
Court."—  G.  £.  i,  p.  147. 

On  the  25th  May,  1636,  it  was  ordered  (i,  p.  174,  175)  as  follows  : 

"The  Gounr.,  Deputy  Gounr.,  Tho.  Dudley,  John  Haynes,  Rich.  Bellingham 
Esqr.  Mr.  Cotton,  Mr.  Peters,  &  Mr.  Shepheard,  are  intreated  to  make  a  draught  of 
Lawes  agreeable  to  the  word  of  God  wch  may  be  the  ffundamentall  of  this  common- 
wealth and  to  present  the  same  to  the  next  Genall  Court.  And  it  is  ordered,  that 
in  the  meane  tyme  the  magistrates  and  their  associates  shall  pceede  in  the  courts  to 
heare  and  determine  all  causes  according  to  the  lawes  iiowe  established  &  where  there 
is  noe  law  then  as  neare  the  law  of  God  as  they  can,  and  frr  all  business  out  of  Court 
for  wch  there  is  ooe  certaine  rule  yet  sett  downe  those  of  the  standing  counpell  or 
some  two  of  them  shall  take  order  by  their  best  discrecon  that  they  may  be  ordered 
&  ended  according  to  the  rule  of  God's  Word,  and  to  take  care  for  all  military 
affaires  till  the  nexte  Genall  Court " 

On  the  12th  March,  1637  (C.  R.  i,  222)  it  was  ordered  as  follows : 

"  For  the  well  ordering  of  these  plantacons  now  in  the  begining  thereof,  it  haveing 
been  found  by  the  little  time  of  experience  wee  have  heare  had  that  the  want  of 


36  EARLY  COLONIAL  LEGISLATION. 

written  Lawes  have  put  the  court  into  many  doubts  and  much  trouble  in  many  per- 
ticuler  cases  this  Court  hath  therefore  ordered  that  the  freemen  of  every  towne  (or 
some  part  thereof  chosen  by  the  rest)  within  this  iurisdicti'on  shall  assemble  together 
in  their  severall  townes  &  collect  the  heads  of  such  necessary  and  fundamentall  lawes 
as  may  bee  sutable  to  the  times  and  places  whear  God  by  his*  pvidence  hath  cast  us, 
&  the  heads  of  such  lawes  to  deliver  in  writing  to  the  Governor  for  the  time  being 
before  the  5th  day  of  the  4th  month  called  June  next  to  the  intent  that  the  same 
Governor,  together  with  the  rest  of  the  standing  counsell  and  Richrd  Bellingham 
Esq,  MrBulkley,  Mr  Philips,  Mr  Peters,  and  Mr  Sheopard  elders  of  severall  churches, 
Mr  Nathaniel!*  Ward,  Mr  Willi:  Mr  Spencer  &  Mr  Will:  Hauthorne  or  the  maior 
part  of  them  may  upon  the  survey  of  suche  heads  of  Lawes  make  a  compendious 
abrigment  of  the  same  by  the  Generall  Court  in  autume  next  adding  yet  to  the  same 
or  detracting  therefrom  what  in  their  wisdomes  shall  seeme  meete  that  so  the  whole 
worke  being  pfected  to  the  best  of  their  skill  it  may  bee  psented  to  the  Generall 
Court  for  confirmation  or  reiection  as  the  Court  shall  adiudge." 

In  1640,  13th  May,  it  was  ordered  as  follows: 

"  Whereas  a  breviate  of  Lawes  was  formerly  sent  to  be  considered  by  the  Elders 
of  the  Churches  and  other  freemen  of  this  Commonwealth  it  is  now  desired  that  they 
will  endeavour  to  ripen  their  thoughts  &  counsells  about  the  same  by  the  Generall 
Court  in  the  next  8  mo :."—  C.  R.  i,  p.  292. 

On  the  7th  October,  1641,  "The  Gov.  &  Mr.  Hauthorno  were  desired  to  Speake 
to  Mr.  Ward  for  a  Coppey  of  the  liberties  &  of  the  Capital!  lawes  to  bee  transcribed 
and  sent  to  the  Generall  townes." — C.  R.  i,  p.  340. 

It  appears  from  this  that  the  laws  were  still  in  manuscript  only,  and  so  we  find 
(C.  R.  v.  ii,  p.  14)  that  on  the  14th  June,  1642,  "  Goodman  Stowe  is  granted  100 
acres  of  Land  where  he  can  find  it  convenient  without  piudice  to  any  towne  for 
recompence  of  his  paines  in  writing  the  lawes  already  &  to  write  such  as  are  still  to 
bee  written." 

On  the  7th  March,  1643,  the  subject  of  a  modification  of  the  laws  is  again  con- 
sidered &  committed  to  the  Govr.,  Mr.  Dudley,  Mr.  Hibbens,  the  Magistrates  residing 
at  Ipswich  and  Mr.  Bellingham. —  C.  R.  ii,  p.  61. 

On  the  14th  May,  1645,  the  subject  seems  to  have  been  more  systematically  taken 
up,  and  committees  of  six  members  each  are  raised  from  the  respective  counties  of 
Suffolk,  Middlesex,  and  Essex,  "  to  consider  &  draw  up  a  body  of  Lawes  to  present 
them  to  the  consideration  of  the  next  General  Court. —  C.  R.  ii,  p.  109. 

On  the  1st  of  October,  1645,  these  committees  are  called  together  at  times  and 
places  designated  for  the  accomplishment  of  the  work,  so  "  that  the  Courte  may 
pceede  thereupon  to  satisfy  ye  expectation  of  the  Country  in  establishing  a  Body  of 
Lawes."—  G.  R.  v.  ii,  p.  128. 

On  the  22d  May,  1646,  is  made  the  following  entry : 

"  This  Corte  thankfully  accepts  of  ye  labors  returned  by  ye  sevrall  committees  of 
ye  sevrall  sheires  &  being  very  unwiling  such  pcious  labors  should  fall  to  ye  ground 
without  yt  good  successe  as  is  genrally  hoped  for,  have  thought  it  meete  to  clesire 
Richrd  Bellingham  Esqr,  Mr  Symonds,  Leit't  Duncan,  Leift  Johnson,  &  Mr  Ward  do 
cause  each  comittees  returne  about  a  body  of  lawes  to  be  transcribed,  so  as  each 
comittee  may  have  ye  sight  of  ye  others  labors,  and  that  ye  psons  mentioned  in  this 
order  be  pleased  to  meete  together  at  or  before  ye  10th  of  August  at  Salem  or  Ips- 
wich, &  on  their  pusing  &  examining  ye  whole  labors  of  all  ye  comittees,  with  ye 
abreviation  of  ye  lawes  in  force,  wch  Mr  Bellingham  tooke  greate  store  of  paines  &  to 
good  purpose,  in  and  upon  ye  whole  &  make  return  to  ye  next  session  of  this  Corte, 
at  wch  time  ye  Cort  intends,  by  ye  favor  and  blessing  of  God,  pceed  to  ye  establish- 
ing of  so  many  of  them  as  shalbe  thought  most  fit  for  a  body  of  Lawes  amongst  us." 
—  C.R.  vol.  ii,  p.  157. 

On  the  4th  November,  1646,  this  entry  is  made  : 

"The  Corte,  being  deeply  sensible  of  ye  earnest  expectation  of  the  country  in 
genrall  for  this  Corts  compleating  of  a  body  of  Lawes  for  ye  bettr  &  more  ordely 
wielding  all  ye  affaires  of  this  comon  wealth,  wiling  also  to  their  utmost  to  answer 
their  honest  and  harty  desires  therein,  unexpectedly  p'vented  by  multitude  of  othr 
pressing  occasions  thinke  fit  &  necessary  yt  this  Corte  make  choyce  of  two  or  three 
of  or  honored  magistrats,  wth  as  many  of  ye  deputies  to  puse,  examine,  compare, 
transcribe,  correct,  &  compose  in  good  order  all  ye  liberties,  Lawes,  &  orders  extant 
with  us,  &  furthr  to  puse  &  pfect  all  such  othrs  as  are  drawne  up  &  to  psent  such  of 


EARLY  COLONIAL  LEGISLATION.  37 

them  as  they  find  necessary  for  us,  as  also  to  suggest  what  they  deeme  needfull  to  be 
aded,  as  also  to  consider  and  contriue  some  good  methode  &  order,  titles,  &  tables 
fior  compiling  ye  whole,  so  as  we  may  have  ready  recourse  to  any  of  them  upon  all 
occasions,  whereby  we  may  manifest  or  uttr  disaffection  to  arbitrary  govermt,  &  so 
all  relations  be  safely  &  sweetly  directed  &  pfected  in  all  their  iust  rights  and  privi- 
ledges,  desireing  thereby  to  make  way  for  printing  or  Lawes  for  more  publike  & 
pfitable  use  of  us  and  or  successors.  Or  honored  Govrnr,  Mr  Bellingham,  Mr  Hibbens, 
Mr  Hill,  &  Mr  Duncan,  as  a  comittee  for  ye  business  above  mentioned,  or  any  three 
of  them  meeiing,  ye  othr  haveing  notice  thereof,  shallbe  sufficient  to  carry  on  ye 
worke."—  0.  ft.  vol.  ii,  p.  168. 

On  the  26th  May,  1647,  the  court,  finding  that  the  committee  for  perfecting  the 
laws  have  "through  streights  of  time  &  other  things  intervening,"  not  completed 
their  work,  commit  the  task  to  another  committee. — G.  ft.  vol.  ii,  p.  196. 

On  the  llth  November,  1647,  it  appears  that  the  work  was  done,  and  arrange- 
ments were  made  about  printing. —  G.  ft.  vol.  ii,  p.  209. 

And  it  is  further  "  agreed  by  ye  Corte  to  ye  end  We  may  have  ye  better  light  for 
making  &  pceeding  about  laws  yt  yr.  shal  be  these  books  following  pcured  for  yr 
use  of  ye  Courte  from  time  to  time :  Two  of  Sir  Edward  Cooke  upon  Littleton  ;  two 
of  ye  Bookes  of  Entryes ;  two  of  Sir  Edwd  Cooke  upon  Magna  Charta  ;  two  of  ye 
Newe  Tearmes  of  ye  Lawe  ;  two  Dalton's  Justice  of  Peace ;  two  of  Sir  Edwd  Cook's 
Reports."— Vol.  ii,  p.  212. 

On  the  same  date,  it  appears  that  the  "Lawes  are  now  in  a  manner  agreed  upon," 
and  a  committee  is  appointed  in  regard  to  alterations. —  C.  ft.  vol.  ii,  pp.  217,  218. 

On  the  10th  May,  1648  (€.  ft.  vol.  ii,  p.  246),  they  are  "  at  presse."  And  on  the 
27th  October,  1648,  the  price  of  the  printed  copy  is  fixed. —  0.  ft.  vol.  ii,  p.  262. 

I  have  thus  traced  the  growth  of  the  first  body  of  printed  laws  in  Massachusetts ; 
and  on  the  17th  October,  1649,  the  Court,  "finding  by  experience  the  great  benefit 
that  doth  redound  to  the  Court  by  putting  of  the  law  in  print,"  direct  the  printing 
of  all  laws  passed  since  the  first  publication. —  G.  ft.  vol.  ii,  p.  286. 


CHAPTER    III. 

THE    PARTS     OF     STATUTES. 

Blackstone's  Enumeration  of  the  Parts  of  a  Statute :  Practical  Division. — Title. — 
Commencement. —  Preamble. —  Purview. — Clauses. —  Provisoes. — Exceptions. — 
Schedules. 

BLACKSTONE  says  *  that  every  law  may  be  said  to  consist  of 
four  several  parts : 

The  Declaratory,  or  that  which  defines  the  rights  to  be 
observed,  and  the  wrongs  to  be  eschewed  ; 

The  Directory,  commanding  the  subject  to  observe  the  right 
and  abstain  from  the  wrong ; 

The  Remedial,  pointing  out  the  method  to  recover  the  right 
or  redress  the  wrong ;  and 

The  Vindicatory,  or  sanction,  declaring  the  penalty  to  be 
inflicted  for  a  violation  of  the  law. 

This  division  is  correct  and  philosophical,  but  has  little 
practical  value.  A  statute  for  practical  purposes  is  divided 
into  the  following  parts : — 

The  Title. 

The  Commencement. 

The  Preamble. 

The  Purview,  or  Body  of  the  Act. 

Special  Clauses. 

Provisoes. 

Exceptions. 

Schedules. 

The  Title. — The  custom  of  prefixing  titles  to  statutes  was 
not  regularly  introduced  prior  to  the  eleventh  year  of  the 
reign  of  Henry  VII,  though  particular  instances  may  have 

*  Introduction,  §  2. 


THE  TITLE.  39 

occurred  before  that  time.  The  title  was  formerly  called  the 
Kubric,  from  being  written  in  red  characters.*  (a) 

In  the  early  English  cases,  the  courts  held  the  title  to  be 
no  part  of  the  statute,  "  no  more,"  says  Lord  Holt,  "  than  the 
title  of  a  book  is  part  of  the  book."f  This  is  not  a  very  good 
illustration.  The  reason  of  the  rule  in  England  is  better  stated 
by  Mr.  Dwarris,  who  says  that  the  title  is  usually  framed  only 
by  the  clerk  of  that  house  in  which  the  bill  first  passes,  and  is 
seldom  read  more  than  once.£  In  accordance  with  this,  the 
title  has  been  said  to  afford  no  clue  to  the  legislative  intent.  [I 

O  II 

But  it  now  seems  that  where  the  meaning  of  the  body  of 
the  act  is  doubtful,  the  title  may  be  relied  on  as  an  assistance 
in  arriving  at  a  conclusion.^  The  title,  however,  being,  in 

O  II  7  7  O' 

strictness,  no  part  of  the  act  in  a  legal  sense,  it  would  be  absurd 
to  attempt  to  use  it  for  the  purpose  of  restraining  or  controlling 
any  positive  provision  of  the  act.  It  can  only  be  used  for  the 
fact  of  the  maker's  having  given  the  law  a  certain  name,  if  that 

•  Dwarris,    p.    500;    Chance  T.   Adams,  ||  1  Ambler,  22. 

Hard,  334.  \  Stradling  v.  Morgan,   Plowden,   203 ; 

f  Rex  v.  Williams,  1  W.  Bl.  85  ;  Poulter's  King  v.  Cartwright,  4  T.   R.  490  ;  King  v. 

Case,  3  Rep.  33  ;  Mills  v.  Wilkins,  6  Mod.  62.  George  Marks,  3  East,  160. 

\  Dwarris,  p.  501. 

(a)  Title. — No  part  of  the  act  but  may  be  referred  to  in  case  of  doubt,  to  ascertain 
the  meaning.  Cohen  v.  Barrett,  5  Cal.  195 ;  Commonwealth  v.  Slifer,  53  Penn.  St. 
71.  In  the  absence  of  the  peculiar  provision  found  in  some  State  Constitutions,  the 
title  cannot  restrain  or  control  any  positive  provisions  of  a  statute.  Flynn  v.  Abbott, 
16  Cal.  358 ;  and  this  is  especially  true  of  acts  of  Congress.  Hadden  v.  The  Collector, 
5  Wall.  107. 

But  when  the  Constitution  requires  the  subject  to  be  stated  in  the  title,  the  title 
is  of  more  importance,  and  may  control  the  statute  or  some  portion  of  it.  Nazro  v. 
Merchants,  &c.  Co.  14  Wise.  295  ;  Dodd  v.  State,  18  Ind.  56  ;  but  see  exparte  New- 
man, 9.  Cal.  502,  523.  In  California  the  constitutional  provision  in  question  is  held 
to  be  directory  merely.  See  the  whole  subject  discussed  at  large,  post,  in  note  on 
the  provision  as  to  "  Titles  and  Subjects." 

As  to  a  subtitle  or  heading,  all  that  follows  under  it  will  be  limited  by  it,  e.  g., 
when  the  heading  was  "  width  and  level  of  new  streets,"  the  provisions  under  it  were 
limited  to  new  streets,  although  broad  enough  to  include  old  ones.  Shiel  v.  Mayor 
of  Sunderland,  6  H.  and  N.  796.  But  as  to  how  far  headings  and  subtitles  in  a 
codification  are  to  be  considered,  see  Battle  v.  Shivers,  3y  Geo.  405  ;  People  v.  Moly- 
neux,  40  N.  Y.  113.  A  marginal  note  is  no  part  of  a  statute,  nor  guide  to  its  con- 
struction. Clay  don  v.  Green,  3  Law  Kep.  C.  P.  511.  The  title  is  presumed  to 
express  the  intent  of  the  law,  unless  plainly  contradicted  by  the  body  of  the  act. 
Conn.  &c.  Ins.  Co.  v.  Albert,  39  Mo.  181 ;  and  the  title  is  especially  to  be  considered 
where  referred  to  in  the  body  of  the  act.  Torreyson  v.  Examiner,  7  Nev.  19. 


40  THE  TITLE. 

fact  can  render  any  assistance  in  doubtful  cases.  Taken  in 
connection  with  the  other  parts  of  the  statute,  the  title,  where 
the  intent  is  not  plain,  may  somewhat  assist  in  removing  am- 
biguities.* 

In  this  country  it  has  been  said,  on  the  same  principle, 
though  the  title  cannot  control  the  plain  intent  of  the  statute, 
that  where  the  words  are  doubtful,  it  may  be  resorted  to  to 
remove  ambiguities,  f 

It  seems  to  me,  on  the  whole,  however,  that  the  original 
rule  is  the  true  one.  The  title  is  rarely  a  matter  of  legislative 
debate  or  scrutiny ;  and  though  it  may,  and  doubtless  does, 
give  a  general  idea  of  the  purport  of  the  act,  still  it  is  precisely 
in  cases  of  nicety  and  doubt  that  it  cannot  with  safety  be 
relied  on.£ 

In  another  point  of  view,  the  title  of  the  statute  has  recently 
received  much  importance  in  some  of  the  States  of  the  Union. 
The  16th  section  of  the  3d  art.  of  the  Constitution  of  New 
York,  adopted  in  the  year  1846,  declares  that  "No  private  or 
local  bill  which  may  be  passed  by  the  Legislature  shall  embrace 
more  than  one  subject,  and  that  shall  be  expressed  in  the  title." 
The  design  of  this  constitutional  provision  has  been  judicially 
declared  |  to  have  been  "  to  prevent  the  uniting  of  various 
objects,  having  no  necessary  or  natural  connection  with  each 
other,  in  one  bill,  for  the  purpose  of  combining  various  pecun- 
iary interests  in  support  of  the  whole,  which  could  not  be 
combined  in  favor  of  either  by  itself;"  and  on  the  ground  that 
the  provision  was  to  be  so  construed  as  to  reach  this  mischief 
alone,  it  has  been  held,  that  an  act  entitled  "  An  act  in  relation 
to  the  fees  and  compensation  of  certain  officers  in  the  city  and 
county  of  New  York,"  by  which  salaries  were  given  to  four 
officers  of  that  city,  in  place  of  the  fees  of  their  respective 
offices,  and  providing  also  that  the  fees  should  be  paid  into  the 
city  treasury  and  the  salaries  paid  out  of  them,  even  assuming 
it  to  be  a  private  bill,  was  not  within  the  constitutional  restric- 

*  Dwarris,  p.  502.  \  See  reference  to  Title  for  aid  in  case  of 

t  U.  S.  v.  Fisher,  2  Cranch  R.  386 ;  U.  S.  ambiguity,    Williams  v.   Williams,  4    Seld. 

v.  Palmer,  3  Wheat.  610 ;  State  v.  Stephen-  525,  535. 

son,  2  Bailey,  334;  Burgett  v.  Burgett,  1  Ham.  |  Conner  v.  The  Mayor,  1  Seld.  285,  293. 

219;  Commonwealth  v.  Slifer,  53  Penn.  St.  71. 


THE   COMMENCEMENT.  41 

tion  above  referred  to ;  that  it  embraced  but  one  subject,  and 
that  the  subject  was  sufficiently  expressed  in  the  title.*  So 
again,  where  an  act  was  passed  entitled  "  For  the  relief  of 
certain  parties,"  and  it  contained,  besides  provisions  for  their 
relief,  a  clause  repealing  another  statute  on  the  same  matter, 
which  had  been  acted  on,  and  therefore  ceased  to  be  operative, 
it  was  held  that  this  did  not  add  another  subject  to  the  bill.f 
So,  an  act  entitled  "  An  act  to  enable,  &c.,  to  raise  money  by 
tax,"  does  not  violate  this  provision,  although  the  law  contains 
special  provisions,  and  designates  the  objects  for  which  the  tax 
is  to  be  levied ;  and  the  Court  of  Appeals  said,  "  There  must 
be  but  one  subject;  but  the  mode  in  which  the  subject  is 
treated,  and  the  reasons  which  influenced  the  Legislature,  can- 
not and  need  not  be  stated  in  the  title,  according  to  the  letter 
and  spirit  of  the  Constitution."  J  The  purpose  of  the  provision 
was,  that  neither  the  members  of  the  Legislature  nor  the  public 
should  be  misled  by  the  title,  not  that  the  latter  should  embody 
all  the  distinct  provisions  of  the  bill  in  detail. 

The  Constitution  of  the  State  of  Texas  contains  the  same 
provision,  and  makes  it  applicable  to  all  bills,  whether  public 
or  private.  "  Every  law  enacted  by  the  Legislature  shall  em- 
brace but  one  object,  and  that  shall  be  expressed  in  the  title."  | 
And  in  that  State  also,  it  is  held  that  the  provision  is  to  be 
liberally  construed.  So,  where  an  act  which  was  entitled,  u  to 
regulate  proceedings  in  the  County  Court,"  gave  an  appeal 
from  the  County  Court  to  the  District  Court,  and  regulated 
proceedings  therein,  it  was  held  that  this  was  not  within  the 
mischief  contemplated  by  the  Constitution,  and  that  the  act 
was  valid.  ^[ 

The  Commencement. — This  clause,  with  which  where  there 
is  no  preamble  each  bill  commences,  varies  according  to  the 

*  Conner  v.  The  Mayor,  1  Seld.  285.  cent  date.  Mr.  Barrington  says  (Obs.  on 

f  Town  of  Guildford  v.  Cornell,  18  Barb.  Statutes,  p.  449),  "  It  becomes,  indeed,  im- 

640.  possible,  when  statutes  relate  to  matters  of  a 

\  Sun  Mutual  Insurance  Co.  v.  The  Mayor,  very  miscellaneous  nature,  that  the  title  can 

4  Seld.  241.  be  coextensive  with  the  views  of  the  Legis- 

I  Cons,  of  Texas,  1845,  Art.  vii,  §  24.  lature.  It  is,  therefore,  to  be  wished  that 

^T  Murphy  v.  Menard,  11  Texas,  673.  See  such  acts  of  Parliament  were  distinct  laws, 

post.  and  not  thrown  together  in  that  very  strange 

The  evil  which  these  constitutional  pro-  confusion  which  hath  now  obtained  the  name 

visions  are  intended  to  correct,  is  not  of  re-  of  a  Hodge  Podge  Act." 


42  THE  PREAMBLE. 

character  of  the  authority  from  which  the  law  emanates.  In 
England,  says  Mr.  Dwarris,  the  mode  of  stating  the  enacting 
authority,  has  varied  at  different  times.  Regulations  having 
the  force  of  laws,  assumed  multiform  shapes,  appearing  some- 
times as  ordinances,  then  as  grants,  patents  and  charters ;  again, 
as  mere  directions  or  prohibitions  of  the  king,  but  sanctioned, 
nevertheless,  directly  or  indirectly,  by  the  Lords  and  Commons. 
Formerly,  the  bill  was  in  the  nature  of  a  petition,  and  these 
petitions  were  entered  upon  the  Parliament  roll ;  and  upon 
these  rolls  the  royal  assent  was  likewise  entered.  Upon  this 
groundwork  the  judges  used,  at  the  end  of  the  Parliament,  to 
draw  up  the  act  of  Parliament  into  the  form  of  a  statute, 
which  was  afterwards  entered  upon  the  statute  roll.  In  Henry 
6th's  time,  the  former  method  was  altered,  and  bills  continentes 
for  mam  actus  Parliament^  came  to  be  at  once  brought  into  the 
house.* 

The  established  form  of  the  commencement  of  a  statute  in 
England,  now  is :  "  Be  it  enacted  by  the  King's  Most  Excellent 
Majesty,  by  and  with  the  advice  and  consent  of  the  Lords, 
spiritual  and  temporal,  and  Commons,  in  this  present  Parlia- 
ment assembled,  and  by  the  authority  of  the  same,  that,"  <fec. 

The  enacting  clause  of  the  laws  of  the  American  Union, 
runs  thus :  "  Be  it  enacted  by  the  Senate  and  House  of  Repre- 
sentatives of  the  United  States  of  America,  in  Congress  as- 
sembled." 

The  enacting  clause  in  the  States  differs  with  their  differ- 
ent organization.  In  New  York  it  runs  thus :  "  The  People  of 
the  State  of  New  York,  represented  in  Senate  and  Assembly, 
do  enact  as  follows." 

The  Preamble. — Both  in  England  and  this  country,  it  was 
at  one  time  a  common  practice  to  prefix  to  each  law  a  preface, 
prologue  or  preamble,  stating  the  motives  and  inducements  to 
the  making  of  it ;  but  it  is  not  an  essential  part  of  the  statute, 
and  is  now  frequently,  if  not  generally,  omitted. 

With  the  civilians,  the  preamble  is  a  matter  of  much  con- 
sequence. They  say,  Cessante  legis  procemio,  cessat  et  ipsa  lex. 
In  our  law  it  holds  a  far  lower  rank.  A  preamble  is  not  only 

*  Dwarris,  p.  503. 


THE  PREAMBLE.  43 

not  essential  and  often,  now  indeed  generally,  omitted,  but  it  is 
without  force  in  a  legislative  sense,  being  but  a  guide  to  the 
intentions  of  the  framer.  Still,  as  such  guide,  it  is  often  of  im- 
portance. It  is  in  this  sense  that,  as  Lord  Coke  and  Lord 
Bacon  say,  the  preamble  is  a  key  to  open  the  understanding 
of  a  statute. 

"The  influence  of  the  preamble,"  says  Mr.  Justice  Story,  in 
his  Commentaries  on  the  Constitution  of  the  United  States, 
"  has  a  foundation  in  the  exposition  of  every  code  of  written  law, 
upon  the  universal  principle  of  interpretation,  that  the  will 
and  intention  of  the  Legislature  is  to  be  regarded  and  followed. 
The  preamble  is  properly  referred  to  when  doubts  or  ambigui- 
ties arise  upon  the  words  of  the  enacting  part.  The  preamble 
can  never  enlarge ;  it  cannot  confer  any  powers  per  se.  Its  true 
office  is  to  expound  powers  conferred,  not  substantially  to 
create  them."*  "  The  preamble  to  a  statute,"  say  the  Supreme 
Court  in  Illinois,  "  is  no  part  of  the  act,  still  it  may  assist  in 
ascertaining  the  true  intent  and  meaning  of  the  Legislature." f 

In  the  modern  English  cases  it  is  said  that  the  preamble 
may  be  used  to  ascertain  and  fix  the  subject  matter  to  which 
the  enacting  part  is  to  be  applied.  J  So,  the  purview  or  body 
of  the  act  may  even  be  restrained  by  the  preamble,  when  no 
inconsistency  or  contradiction  results.  ||  But  it  is  well  settled 
that  where  the  intention  of  the  Legislature  is  clearly  expressed 
in  the  purview,  the  preamble  shall  not  restrain  it,  although  it 
be  of  much  narrower  import.^  "  If  the  words  of  this  section," 
says  Lord  Campbell,  C.  J.,  in  a  recent  case,  "  admitted  of  any 
reasonable  doubt,  we  would  look  to  the  title  and  preamble,  and 
endeavor  to  construe  the  enactments  consistently  with  them."  ** 
So,  if  a  clear  and  definite  remedy  is  given  by  the  act,  the  pre- 
amble cannot  be  used  to  introduce  one  more  extensive.ff 

*  See,  to  same  effect,  Crespigny  v.  Witte-  Clarke,  2  Atk.  205 ;  Holbrook  v.  Holbrook,  1 

noom,  4  T.  R.  790  ;  Edwards  v.  Pope,  3  Scam.  Pick.  251 ;  Copeman  v.  Gallant,  1  P.  Wm.  R. 

465.  320;    King  v.   Athos,  8  Mod.   144;    Kent  v. 

}  Edwards  v.  Pope,  3  Scam.  465.  Somervell,  7  'rill  and  J.   265  ;  Lees  v.  Sum- 

Salkeld  v.  Johnson,  1  Hare,  196  ;  Eman-  ersgill,  17  Ves.  510. 

uel  v.  Constable,  3  Russel,  436 ;    Foster  v.  **  Wilmot  v.  Rose,  3  Ellis  and  Blackburn, 

Banbury,   3   Sim.  40;    Crespigny  v.   Witte-  Q.   B.   563;    Free  v.  Burgoyne,  5  B.  and  C. 

noom,  4  T.  R.  790.  400. 

|  Seidenbender  v.  Charles,  4  S.  and  R.  166  ;  ff  "Wilson   v.  Knubley,  7  East,  128  ;  Bac. 

Kent  v.  Somervell,  7  Gill  and  J.  266.  Abr.  Stat.  1 ;  Adams  v.  Wood,  2  Cranch,  336. 
If  King  v.  Marks,  3  East,  165 ;  Kinaston  v. 


44  THE  PREAMBLE. 

A  question  has  arisen  as  to  the  effect  of  the  preamble  as 
matter  of  evidence ;  or,  in  other  words,  whether  the  allega- 
tion by  the  Legislature  in  the  preamble  of  a  statute,  of  the  ex- 
istence of  certain  facts,  can  be  offered  as  evidence  of  these  facts 
in  courts  of  justice,  when  private  rights  come  in  question.  On 
this  point  it  has  been  held  in  England,  where  an  information 
for  a  libel  contained  an  introductory  averment  that  great  out- 
rages had  been  committed  in  certain  parts  of  the  country,  that 
the  preamble  of  an  act  of  Parliament  reciting  the  existence  of 
outrages  of  that  description,  was  admissible  for  the  purpose  of 
proving  the  averment.* 

This  decision,  however,  gives  more  weight  to  the  preamble 
than  would  probably  be  allowed  to  it  in  this  country.  The 
court  of  Kentucky,  on  the  question,  whether  the  preamble  of  a 
private  statute  could  be  used  as  evidence  of  the  matters  recited 
in  it,  said :  "  The  fact  recited  in  the  preamble  of  a  private 
statute  may  be  evidence  between  the  commonwealth  and  the 
applicant  or  party  for  whose  benefit  the  act  was  passed.  But  as 
between  the  applicant  and  another  individual  whose  rights  are 
affected,  the  facts  recited  ought  not  to  be  evidence.  We  well 
know  that  such  applications  are  made  frequently  ex  parte.  The 
Legislature  in  all  its  inquiring  forms  by  committees,  makes  no 
issue.  Once  adopt  the  principle  that  such  facts  are  conclusive,  or 
even  prima  facie  evidence  against  private  rights,  and  many  indi- 
vidual controversies  may  be  prejudged,  and  drawn  from  the  sanc- 
tions of  the  judiciary  into  the  vortex  of  legislative  usurpation. 
The  appropriate  functions  of  the  Legislature  are  to  make  laws 
to  operate  on  future  incidents,  and  not  a  decision  or  forestalling 
of  rights  accrued  or  vested  under  previous  laws.  Such  a  pre- 
amble is  evidence  that  the  facts  were  so  represented  to  the  Leg- 
islature, and  not  that  they  are  really  true."  f  This  reasoning 
applies  with  as  much  force  to  public  as  to  private  statutes ;  and 
the  Supreme  Court  of  New  York  has  well  said  that  the  Legis- 
lature has  no  jurisdiction  to  determine  facts  touching  the  rights 
of  individuals.  J 

A  preamble  is  sometimes  prefixed  to  a  particular  clause,  the 

*  Rex  v.  Sutton,  4  Maule  and  Sel.  532.  \  Parmlee  v.  Thompson,  7  Hill,  77. 

f  Elmendorf  v.  Carmichael,  4  Litt.  R.  47. 


CLAUSES.  45 

tenor  of  which  it  is  meant  to  explain,  or  which  it  is  intended  to 
elucidate.*  (a) 

TJie  Purview,  or  Body  of  the  Act. — The  true  meaning  of  the 
statute  is  generally  to  be  sought  in  the  purview,  providing  part 
or  body,  of  the  act.  As  we  have  seen,  it  is  well  settled  that 
when  the  words  in  this  part  are  broad  enough  to  take  in  the 
mischief  alleged  to  be  included,  they  shall  be  so  construed, 
though  the  preamble  does  not  warrant  it ;  in  other  words,  the 
purview  of  the  statute  may  carry  the  act  beyond  the  preamble. 
"  There  are  a  variety  of  cases,"  says  Lord  Mansfield,  "  where  it 
has  been  determined  that  strong  words  in  the  enacting  part  of 
a  statute  may  extend  beyond  the  preamble."f  This,  then,  seems 
to  be  the  general  principle.  The  title  may  be  resorted  to  in 
cases  of  ambiguity,  and  is  a  guide  of  some,  though  slight  value. 
The  preamble  may  be  consulted  to  ascertain  the  intention  of 
the  law-making  power.  But  it  is  chiefly  from  the  main  body, 
the  purview  of  the  act,  that  the  will  of  the  Legislature  is  to  be 
learned ;  and  when  this  is  clear  and  express  neither  preamble 
nor  title  will  avail  to  contradict  or  overrule  it.  Absoluta  sen- 
tentia  expositore  non  indiget.  "This  is  the  case,"  says  Lord 
Coke,  "  where  the  words  are  plain  without  any  scruple,  and 
absolute  without  any  saving."  J  We  shall  discuss  other  branches 
of  this  part  of  our  subject  when  we  come  to  examine  the  rules 
of  interpretation. 

Clauses. — Of  these,  in  bills,  there  are  various  kinds.  Bills 
frequently  contain  an  interpretation  clause ;  and  this  clause, 
says  Mr.  Dwarris,  should  precede  the  mere  body  of  the  act, 

*  Mr.  Barrington,  in  his  Observations  on  a  pretense  which  was  not  the  real  occasion  of 

the  Ancient  Statutes,  a  rambling,  but  shrewd,  the  law,  when  perhaps  the  proposer  had  very 

sensible,   and   learned  work,  manifests   con-  different  views  in   contemplation." — Obs.  on 

siderable   hostility  to   preambles.     He  says-  Stat.,  t>.  394. 

"  The  most  common  recital  for  the  introduc-         f  Dwarris,  p.  507 ;  Strode  v.  The  Stafford 

tion  of  any  new  regulation  is  to  set  forth  that  Justices,  1  Brock,  162  ;  3  Atk.  204  ;  Pattison 

'doubts  have  arisen  at  common  law' which  v.  Banks,  Cowper,  540;  Doe  dcm.  Bywater 

frequently  never  existed."     And  again,  with  v.  Brandling,  7  B.  and  C.  643. 
great  truth,  "the  preamble  often  dwells  upon         \  2  Inst.  533  ;  Dwarris,  p.  519. 

(a)  General  words  in  the  preamble  will  not  enlarge  the  scope  of  the  enacting 
clause.  Covington  v.  McMckle,  18  B.  Mon.  262.  Eecitals  in  the  preamble  are  not  evi- 
dence against  individuals  whose  rights  are  affected.  Duncombe  v.  Prindle,  12  Iowa  1. 
Where  the  statute  is  not  explicit  in  itself,  it  may  be  explained  and  cut  down  by  its 
preamble.  Hughes  v.  Chester,  &c.  R.  R.  1  Drewry  &  8m.  524.  Preamble  referred 
to  in  aid  of  the  construction  in  Atty.  Gen.  v.  Earl  of  Powis,  1  Kay,  186. 


46  INTERPRETATION  CLAUSE. 

since,  as  he  says,  agreeably  to  right  reason  and  common  sense, 
definitions  should  precede  the  matter  to  which  they  have  refer- 
ence. In  America,  however,  the  interpretation  clause,  where  it 
occurs,  is  generally  to  be  found  at  the  end  of  the  statute. 

The  practical  use  of  the  interpretation  clause  will  be  best 
understood  from  an  example — thus  :  "  The  words  and  expres- 
sions hereinafter  mentioned,  which  in  their  ordinary  significa- 
tion have  a  more  confined  or  a  different  meaning,  shall  in  this 
act  (except  where  the  nature  of  the  provision  or  context  of  the 
act  shall  exclude  such  construction)  be  interpreted  as  follows : 
that  is  to  say,  the  word  '  land '  shall  extend  to  manors,  ad  vow- 
sons,  messuages,  and  all  other  hereditaments,  whether  corporeal 
or  incorporeal,  or  of  other  tenure,"  &c.  And  again  :  "  Every 
word  importing  the  plural  number  shall  extend  and  be  applied 
to  a  female  as  well  as  to  a  male,"  &c.  &c* 

In  England  the  judicial  inclination  seems  to  be  that  inter- 
pretation clauses  are  by  no  means  to  be  strictly  construed. f  In 
a  recent  case,  Lord  Denman  said,  "  A  difficulty  is  raised  from 
the  interpretation  clause,  which  enumerates  all  such  persons  as 
shall  be  meant  and  included  in  the  term  overseers.  And  it  is 
argued  that  the  Legislature  could  not  intend  the  majority  of 
this  indefinite  and  fluctuating  body  to  concur  in  giving  a  notice. 
The  argument  goes  rather  to  show  the  inconvenience  of  re- 
quiring the  majority  to  act,  than  to  determine  whether  a  church- 
warden is  an  overseer,  the  real  question  in  these  cases.  But  we 
apprehend  that  an  interpretation  clause  is  not  to  receive  so 
rigid  a  construction ;  that  it  is  not  to  be  taken  as  substituting 
one  set  of  words  for  another,  nor  as  strictly  defining  what  the 
meaning  of  a  word  must  be  under  all  circumstances.  We 
rather  think  that  it  merely  declares  what  persons  may  be  com- 
prehended within  that  term,  where  the  circumstances  require 
that  they  should.  We  cannot,  however,  refrain  from  express- 
ing a  serious  doubt  whether  interpretation  clauses  of  so  exten- 
sive a  range  will  not  rather  embarrass  the  courts  in  their  decision 
than  afford  that  assistance  which  .they  contemplate;  for  the 
principles  on  which  they  are  themselves  to  be  interpreted  may 

*  Dwarris,  p.  508,  509.  v.  Justices  of  Shropshire,  and  Reg.  v.  Justices 

f  Reg.  v.  Justices  of  Cambridgeshire,  Reg.     of  Gloucestershire,  7  A.  and  E.  480. 


SAYING  CLAUSE.  47 

become  matter  of  controversy,  and  the  application  of  them  to 
particular  cases  may  give  rise  to  endless  doubts." 

The  purview  of  an  act  may  be  qualified  or  restrained  by  a 
saving  clause  in  the  statute.* (a)  A.  saving  in  the  statute  is 
only  an  exemption  of  a  special  thing  out  of  the  general  things 
mentioned  in  the  law;f  but  a  saving  clause  in  a  statute,  where 
it  is  directly  repugnant  to  the  purview  or  body  of  the  act, 
and  cannot  stand  without  rendering  the  act  inconsistent  and 
destructive  of  itself,  is  to  be  rejected.  J  This  is  inconsistent,  as 
we  shall  presently  see,  with  the  rule  in  regard  to  provisoes ; 
and  the  inconsistency  has  been  clearly  pointed  out  by  Mr. 

*  1  Jon.  339 ;  10  Mod.  155 ;  Dwarris,  p.513.  \  Plowden,  565;  Dwarris,  659 ;  Mitford  v. 

f  Hollewellv.  Corporation  of  Bridge  water,     Elliott,  8  Taunt.  18. 
2  And.  192. 

(a)  Saving  Clauses. — A  proviso  protecting  acts  done  under  the  statute  repealed  is 
to  be  liberally  construed.  Foster  v.  Pritchard,  40  E.  L.  &  Eq.  R.  446.  A  saving 
clause  of  rights  existing  at  the  "  passage  "  of  a  statute  refers  to  the  time  of  its  going 
into  effect.  Rogers  v.  Vass,  6  Clnrke  (la.)  405.  A  clause  keeping  in  force  all  acts 
"  regulating  the  fees,"  &c.,  of  officers  will  not,  it  seems,  apply  to  one  taking  away  fees 
entirely.  Webb  v.  Baird,  6  Ind.  13.  A  saving  clause  of  all  "  proceedings,"  held  to 
mean  judicial  proceedings,  and  not  to  cover  an  election.  Gordon  v.  State,  4  Kans. 
489.  A  saving  of  rights  accruing,  accrued,  or  established  will  not  prevent  the  retro- 
spective operation  of  the  statute — namely,  one  of  limitations — if  a  reasonable  time 
was  left  in  which  to  commence  actions,  and  the  bar  is  not  already  established. 
Brisbin  v.  Farmer,  16  Minn.  215.  Where  a  criminal  statute  was  repealed  by  a  new 
criminal  law,  with  a  saving  clause  for  the  punishment  of  past  offences  committed 
under  it,  and  afterwards  a  criminal  code  was  adopted  repealing  all  other  criminal 
laws,  with  a  saving  of  the  right  to  punish  offences  against  any  act  thereby  repealed, 
it  was  held  that  this  did  not  preserve  the  right  to  punish  for  offences  against  the  first 
of  these  three  statutes,  which  had  been  repealed  by  the  second,  and  was  not,  there- 
fore, repealed  by  the  Code.  Jones  v.  State,  1  Clarke  (la.)  395.  A  saving  clause  in  a 
State  Constitution  that  all  "  suits,  rights,  actions,  prosecutions,  recognizances,  con- 
tracts, judgments  and  claims,  both  as  respects  individuals  and  bodies  corporate,  shall 
continue  as  if  no  change  had  taken  place,"  will  not  prevent  a  change  of  remedy 
applicable  to  any  of  the  matters  enumerated.  Cusic  v.  Douglas,  3  Kans.  123.  Conse- 
quently an  execution  on  a  judgment  recovered  before  the  adoption  of  the  Constitution 
cannot  be  levied  on  a  homestead  exempted  by  the  Constitution.  Ibid.  But  see,  in 
this  connection,  the  recent  case  of  Gunn  v.  Barry,  15  Wall.  610.  Where  there  is 
nothing  inconsistent  therewith,  a  repealing  act  must  be  held  to  have  been  passed 
with  reference  to  a  prior  general  law,  providing  that  repeal  shall  not  affect  acts  done 
or  rights  accruing,  &c.,  before  the  repeal ;  and  such  a  saving  clause  will  be  considered 
as  incorporated  in  the  act.  Lakeman  v.  Moore,  32  N.  H.  410 ;  State  v.  Shaffer,  21 
Iowa,  486  ;  Rogers  v.  Pacific  R.  R.  35  Mo.  153  ;  Richardson  v.  State,  3  Cold.  (Tenn.) 
122  ;  Grace  v.  Donovan,  12  Minn.  580.  A  general  statute,  saving  existing  actions  in 
cases  of  repeal,  applies  to  a  repeal  by  implication.  Hine  v.  Pomeroy,  39  Vt.  211.  For  a 
case  giving  construction  to  a  saving  clause,  see  Commonwealth  v.  Edwards,  4  Gray,  1. 


48  REPEALING   CLAUSE. 

Chancellor  Kent,  who  well  says,*  "  A  proviso  repugnant  to  the 
purview  of  the  statute  renders  it  equally  nugatory  and  void  as 
a  repugnant  saving  clause ;  and  it  is  difficult  to  see  why  the 
act  should  be  destroyed  by  the  one  and  not  by  the  other,  or 
why  the  proviso  and  the  saving  clause,  when  inconsistent  with 
the  body  of  the  act,  should  not  both  of  them  be  equally  rejected." 
But  apart  from  a  direct  repugnancy,  the  general  words  in  one 
clause  of  a  statute  may  be  restrained  by  the  particular  words 
in  a  subsequent  clause  of  the  same  statute,  f  When  a  general 
intention  is  expressed,  and  the  act  also  expresses  a  particular 
intention  incompatible  with  the  general  intention,  the  particular 
intention  is  to  be  considered  in  the  nature  of  an  exception.^ 
But  a  particular  thing  given  by  the  preceding  part  of  statute 
shall  not  be  taken  awTay  or  altered  by  any  subsequent  general 
words.  I 

Repealing  Clause. — The  next  clause  in  order,  in  those  cases 
in  which,  it  is  used,  should  be  the  repealing  clause,  showing 
what  prior  acts  are  totally  repealed,  except  so  far  as  they  repeal 
any  other  act  or  acts,  or  part  or  parts  thereof,  and  what  acts 
are  partially  repealed;  and  what  statutes  are  recognized  as 
being  in  full  force,  and  as  having  immediate  connection  with 
the  enactments  of  such  former  act.  The  object  of  this  clause  is 
to  point  out  that  either  it  is  the  only  statute  of  force  upon  the 
subject,  by  the  repeal  of  all  others,  or  to  show  what  other 
statutes  are  to  be  considered  in  connection  with  it,  so  that  the 
student  may  be  better  prepared  to  enter  on  the  consideration 
of  the  details  in  the  last  statute.^"  In  this  country,  the  repeal- 
ing clause  is  too  often  omitted,  owing  to  the  multiplicity  of  our 
legislation,  and  the  haste  consequent  thereupon.  It  would  un- 
doubtedly lead  to  greater  care  and  precision,  if  it  were  practi- 
cable, to  make  it  necessary  in  every  statute  to  refer  at  length  to 
the  prior  enactments  on  the  subjects,  and  to  designate  such 
provisions  as  it  was  intended  to  repeal.** 

*  Kent  Com.  i,  463.  **  In  New  Tort,  this  was  much  attended 

f  R.  T.  Archbishop  of  Armagh,  8  Mod.  8.  to  by  the  revisers  of  the  general  legislation 

\  Churchill  v.  Crease,  6  Bing.  180 ;  Ter-  of  the  State,  and  the  codifiers  of  the  system 

rington  v.  Hargraves,  76.  492.  of  pleading.  In  the  Constitution  of  some  of 

||  Stanton  v.  University  of  Oxford,  1  Jon.  the  new  States,  there  is  inserted  a  provision 

26.  in  regard  to  the  revision  and  amendment  of 

T  Dwarris,  p.  511.  laws  with  reference  to  the  title,  the  analogy 


PROVISOES.  49 

The  remaining  clauses  in  most  general  use  are,  besides  those 
already  mentioned,  an  appeal  clause ;  a  clause  showing  to  what 
places  the  operation  of  the  act  shall  extend  ;  a  clause  showing 
from  what  date  the  operation  of  the  act  is  to  commence,  and 
how  long  it  shall  continue  in  force  ;  and  lastly,  in  England,  the 
concluding  clause  of  a  public  general  act,  the  clause  providing 
that  the  act  may  be  altered  and  repealed  in  the  same  session  of 
Parliament. 

We  come  next  to  Provisoes. — "  A  proviso  in  deeds  or 
laws,"  says  the  Supreme  Court  of  the  United  States,  "  is  a 
limitation  or  exception  to  a  grant  made  or  authority  conferred, 
the  effect  of  which  is  to  declare  that  the  one  shall  not  operate 
or  the  other  be  exercised  unless  in  the  case  provided."  *  A 
curious  rule  of  a  very  arbitrary  nature,  to  which  I  have  already 
alluded,  prevails  with  regard  to  provisoes.  It  is  that  when  the 
proviso  of  an  act  of  Parliament  is  directly  repugnant  to  the 
main  body  of  it,  the  proviso  shall  stand  and  be  held  a  repeal  of 
the  purview,  as  it  speaks  the  last  intention  of  the  makers,  f  (a) 

of  which  might  perhaps  be  followed  in  regard  449,  per  Baldwin,  J.     "  The  proviso  is  gen- 

to  the  repeal  of  statutes.    So  the  Constitutions  erally  intended  to  restrain  the  enacting  clause, 

of  California  [Art  iv,  §  25]  and  Indiana  [Art.  and  to  except  something  which  would  other- 

iv,  §  21]  both  declare  that  "  no  act  shall  be  wise  have  been  within  it,  or  in  some  measure 

revised  or  amended  by  mere  reference  to  its  to  modify  the  enacting  clause."     Wayman  v. 

title,  but  the  act  revised  or  section  amended  Southard,  10  Wheaton,  1,  30. 

shall    be    re-enacted  and  published    at    full  \  Attorney  -  General    v.    Chelsea  Water 

length;"  and  the  same  provision   has  been  Works  Co.,  Fitzgibbon,  195;    2  Dwarris  on 

adopted  in  Texas.     [Art.  vii,  §  25.]  Statutes,  515  ;  Rex  v.  Justices  of  Middlesex, 

*  Voorhees  v.  Bank  of  U.   S.  10  Peters,  2  B.  and  Adol.  818;  supra,  p.  47. 

(a)  The  rule  that  a  proviso  repugnant  to  the  purview  of  the  statute  containing 
it  is  void,  does  not  apply  to  a  proviso  in  the  charter  of  a  private  corporation. 
Dugan  v.  Bridge  Co.  27  Penn.  St.  303.  A  proviso  is  to  be  considered  as  limiting 
the  enacting  clause,  and  its  effect  is  to  be  restrained  to  that.  Thus  where  a  bank 
charter  expiring  in  1859  gave  the  right  to  discount  at  seven  per  cent.,  and  in  1852 
an  act  was  passed  extending  the  charter,  with  the  proviso  that  only  six  per  cent, 
should  be  taken,  it  was  held  that  this  proviso  did  not  go  into  effect  till  the  expira- 
tion of  the  old  charter.  Pearce  v.  Bank  of  Mobile,  33  Ala.  693.  And  where  an 
amendment  of  a  turnpike  charter  authorized  the  extension  of  the  road  into  the  city, 
with  a  proviso  that  there  should  be  no  gate  erected  within  the  city  limits,  the  pro- 
viso was  limited  in  its  effect  to  the  amendment.  Detroit  v.  Detroit,  &c.  Co.  12 
Mich.  333.  A  proviso  in  the  first  section  that  the  act  shall  not  apply  to  estates  in 
process  of  settlement,  applies  also  to  section  two  of  the  act  repealing  the  existing 
law.  Mechanics',  &c.  Bank  Appeal,  31  Conn.  63.  A  proviso  at  the  end  of  one  sec- 
tion was  held  to  extend  to  the  whole  act.  The  first  section  gave  the  registers,  &c. 
of  the  land  office  the  right  to  charge  certain  fees  for  certain  services.  The  next 
section  gave  the  right  to  registers,  in  or  out  of  office,  to  be  compensated  by  the 
4 


50  EXCEPTIONS 

Exceptions. — There  is  a  well-known  distinction  between  an 
exception  in  the  purview  of  the  act  and  a  proviso.     If  there  be 
an  exception  in  the  enacting  clause  of  a  statute,  it  must  be 
negatived  in  pleading,  but  a  separate  proviso  need  not ;  and, 
that  although  it  is  found  in  the  same  section  of  the  act,  if  it  be 
not  referred  to  and  engrafted  on  the  enacting  clause.     The  rule 
is,  said  Mr.  Justice  Ashurst,*  "  that  any  man  who  will  bring 
an  action  for  a  penalty  on  an  act  of  Parliament,  must  show 
himself  entitled  under  the  enacting  clause ;  but  if  there  be  a 
subsequent  exemption,  that  is  a  matter  of  defence,  and   the 
other  party  must  show  it  to  exempt  himself  from  the  penalty." 
Mr.  Justice  Buller  said,  "  I  do  not  know  any  case  for  a  penalty 
on  a  statute,  where  there  is  an  exception  in  the  enacting  clause, 
that  the  plaintiff  must  not  show  that  the  party  whom  he  sues 
is  not  within  it,"     So  in  a  criminal  case,  Lord  Mansfield  said, 
"  What  comes  by  way  of  proviso  in  a  statute  must  be  insisted 
on  for  the  purposes  of  defence  by  the  party  accused ;  but  where 
exceptions  are  in  the  enacting  part  of  the  law,  it  must  in  the 
indictment  charge  that  the  indictment   is  not  within  any  of 
them."t     This  rule   as  to  prosecutions   upon   penal  statutes, 
that  it  is  necessary  to  show,  by  negative  averments,  that  the 
defendant  is  not  within  any  of  the  exceptions  of  the  enacting 
part  of  the  statute,  has  been   frequently  recognized   in   this 
country.     So,  if  a  statute  provides  that  no  person  shall  retail 
spirituous  liquors  except  for  sacramental,  mechanical,  chemical, 
medical,  or  culinary  purposes,  an   indictment  on   the  statute 
must  negative  that  the  liquor  was  sold  for  these  purposes.^  (a) 

*  Spiers  v.  Parker,  1  Term,  141.  Kent  Com   i,  462 ;  and  People  v.  Berberrich 

\  Dwarris   p.  516;  Rex  v.  Jarvis,  Burr,     and  Toynbee,  11  Howard  I  r.  R,  p.  S99. 

148  •  Spiers  v.  Parker,  1  T.  R.  141 ;  The  King  *  Chit.  Crim  Law,  vol.  i  p.  284  ;  Brutton 

v  Jukes  8  T.  R.  542 ;  Foster,  430 ;  The  King    T.  The  State,  4  Indiana,  602  ;  People  v  Ber- 

v    Stone,  and  Rex  V.  Jarvis,  1  East,  644;     berrich  and  Toynbee,  11  Howard  Pr.  R.  pp. 

289,  3oo. 

United  States  for  similar  past  services  at  same  rate.  At  end  of  this  section  came 
the  proviso  that  no  register  or  receiver  should  receive  for  his  services  during  every 
year  a  greater  compensation  than  the  maximum  now  allowed  by  law.  Held,  that 
this  proviso  applied  to  the  whole  act,  to  future  services  as  well  as  past.  United 
States  v.  Babbit,  1  Black  (U.  S.),  55;  and  see  Mayor  of  Cumberland  v.  Magruder, 

34  Md.  381. 

As  to  Provisoes  and  Exceptions,  see  State  v.  Stapp,  29  Iowa,  561. 

(a)  Where,  in  a  repeal  of  a  liquor  law,  prosecutions  for  sale  of  quantities  less 


SCHEDULES.  51 

Schedules. — When,  for  the  purpose  of  a  more  than  usually 
comprehensive  enactment,  it  is  deemed  necessary  to  include  the 
intended  meaning  of  numerous  words  in  the  arbitrary  import 
of  one,  or  that  there  should  be  numerous  words  bearing  the 
same  constructive  import,  that  end  should  be  attained  by  means 
of  a  schedule  annexed  to  the  act.  But  the  act  of  Parliament 
and  the  schedule  are  sometimes  found  to  differ ;  and  what  will 
be  the  result  -  of  such  discrepancy  ?  If  there  be  any  contradic- 
tion between  the  two,  and  they  cannot  be  reconciled,  then, 
said  Lord  Denman,  "  upon  ordinary  principles,  the  form  which 
is  made  to  suit  rather  the  generality  of  cases  than  all  cases, 
must  give  way."  "  Words  in  schedules  must  be  received  as 
examples,  not  as  overruling  provisions,"  said  Tindal,  C.  J.*  (a) 

*  Reg.  v.  Baines,  12  A.  &  E.  227;  Dwarris,  p.  511. 

than  a  gallon  were  saved,  held,  that  where  the  indictment  charged  a  sale  without 
specifying  quantity,  it  might  be  maintained  on  proof  of  sale  of  quantity  less  than  a 
gallon.  Teague  v.  State,  39  Miss.  516. 

(a)  A  clause  found  among  the  temporary  clauses  in  the  schedule  to  a  Constitu- 
tion will  be  regarded  as  temporary  :  it  will  be  presumed  that  such  was  the  intention. 
State  v.  Taylor,  15  Ohio,  N.  S.  137. 


CHAPTER    IV. 

THE  ATTRIBUTES  AND  INCIDENTS  OF  STATUTES. 

Applications  for  the  Passnge  of  Statutes. — Contracts  to  obtain  the  Passage  of  Statutes, 
or  to  withdraw  Opposition. — Authority  and  Jurisdiction  of  Statutes. — Time 
when  Statutes  take  Effect. — Effect  of  Statutes  to  avoid  Contracts  in  Violation 
of  them. — Remedies  for  the  Violation  of  Statutes.  —Statutory  Forfeitures. — 
Ignorance  of  Statute  no  Excuse. — Limitations  of  Actions. — Waiver  of  Statutes 
by  Consent. — Pleading  and  Proof  of  Statutes. — Repeal. 

WE  have  now  to  consider  the  more  important  attributes 
and  incidents  of  statutes  from  the  time  of  the  first  steps  taken, 
for  their  enactment  to  that  of  their  repeal.  This  wrill  embrace, 
among  other  subjects,  applications  to  the  Legislature  for  the 
passage  of  laws ;  the  effect  of  contracts  to  obtain  or  oppose 
their  enactment ;  their  authority  and  jurisdiction ;  remedies 
and  waiver ;  the  rules  of  pleading  and  of  proof  with  regard  to 
them  ;  and  finally,  the  results  of  their  repeal. 

As  a  general  rule,  no  public  notice  is  necessary  previous  to 
the  introduction  or  passage  of  an  act.  Bills  are  framed  either 
upon  petitions,  or  upon  the  mere  motion  of  members  of  the 
legislative  body  ;  and  parties  interested  have  only  such  notice 
of  their  introduction  as  the  wisdom  of  the  legislator  sees  fit  to 
require.*  To  this  general  practice  there  is  an  exception  in 
North  Carolina,  the  Constitution  of  which  State  provides 
"  that  the  General  Assembly  shall  not  pass  any  private  law 
unless  it  shall  be  made  to  appear  that  thirty  days'  notice  of 
application  to  pass  such  law  shall  have  been  given,  under  such 
directions  and  in  such  manner  as  shall  be  provided  by  law ;  "f 

*  The  Constitution  of  New  York  declares,  State  Treasurer,   44  Vt.  356;  ex  parte  Hill, 

Art.  iii,  §  14,  "that  no  law  shall  be  enacted  40    Ala.  121;  Mobile  School   Commissioners 

except   by   bill."     The   Constitution  of  Wis-  v.    Putnam,   44   Ala.    506 ;   Matter   of  State 

consin  contains  a  similar  provision.     Art.  iv,  Capitol,   1  Wash.  Terr.  135 ;  per  contra,  see 

§17.     [A  joint    resolution    where   the  Con-  Swann  v.  Buck,  40  Miss.  268.     Such  provision 

stitution    requires    an    "act"    is    void,    the  is  directory.     McPherson  v.  Leonard,  29  Md. 

form  "  Be  it  enacted,"  <fcc.,  as  prescribed  by  377. — EDITOR.] 

the   Constitution  being   mandatory.     Boyers  f  Amendments    to    Constitution,   Art.    i, 

v.   Crane,   1   W.   Va.   176;   see   Kellogg  v.  §6. 


NOTICE   OF    APPLICATION.  53 

and  also  in  the  State  of  New  York,  where  the  Revised  Statutes 
declare*  that,  in  regard  to  applications  for  acts  of  incorpora- 
tion, alteration  of  county,  city,  or  village  boundaries,  local 
taxes,  escheats,  and  certain  other  public  objects,  notice  of  the 
intention  to  apply  to  the  Legislature  shall  be  given,  by  news- 
paper advertisement.  But  it  has  been  held,  in  regard  to  a 
statute  of  this  class,  that  it  was  not  necessary  to  furnish  any 
proof  of  the  publication  of  the  notice  having  been  in  fact 
made ;  and  it  was  said,  "  that  the  notice  was  a  direction  to  the 
public,  calculated  merely  to  guard  the  Legislature  from 
surprise  and  fraud,  and  to  prevent  hasty  and  improvident 
legislation ;  that  the  rule  was  made  by  the  Legislature  for  its 
own  convenience,  and  might  be  entirely  disregarded ;  and  that 
a  law  would  be  valid  although  no  notice  whatever  of  the 
application  was  published."  f 

This  decision,  though  perhaps  sound,  is  evidently  calculated 
to  defeat  the  intent  of  the  statutory  provision ;  but  in  general 
the  effort  of  our  law  is,  as  far  as  possible  to  guard  against 
undue  private  interference  with  the  functions  of  government. 
So  in  this  country,  contracts  made  with  a  view  to  secure  the 
passage  of  legislative  enactments,  or  the  performance  of  execu- 
tive acts,  have  been  held  to  be  void,  as  against  public  policy. 
Thus  a  contract  founded  on  an  agreement  to  obtain  signatures 
for  a  pardon,^  to  procure  the  passage  of  an  act  by  the 
Legislature  by  using  personal  influence,  |  to  pay  a  sum  for 
withdrawing  opposition  to  the  passage  of  a  law  touching  the 
interests  of  a  corporation,^  have  all  been  held  void.  In  like 
manner,  in  New  York,  it  has  been  decided  that  no  action  will 
lie  for  services  as  a  lobby  agent,  in  attending  to  a  claim  against 
the  State  pending  before  the  Legislature ;  Mr.  Justice  Hand,  in 
the  language  of  a  high  toned  morality,  alike  creditable  to 
himself  and  to  the  court  of  which  he  is  a  member,  saying, 
"  It  is  to  be  intended  that  the  Legislature  always  have  truth 
and  justice  before  their  eyes.  It  would  certainly  imply  a  most 
unjustifiable  dereliction  of  duty,  to  hold  that  the  employment 
of  individuals  to  visit  and  importune  the  members  is  necessary 

*  1    R.   S.    155,  Part  i,   ch.  vii,  Title  3,  |  Clippinger  v.  Hepbaugh,  5  Watts  and 

§§  1,  2,  et  seq.  Serg.  315. 


j-  Smith  v.  Helmer,  7  Barbour,  416.  *fr  Purgey  v.  Washburnf  1  Ack.  264. 


Hatzfield  v.  Gulden,  7  Watts,  152. 


54 


CONSTITUTIONAL   MAJORITIES. 


to  obtain  justice."*  In  England,  however,  it  seems  that  an 
agreement  to  withdraw  opposition  to  a  railway  bill  for  a  pecun- 
iary or  other  consideration,  is  not  illegal  in  itself;  and  such  an 
agreement  \vill  be  upheld  unless  it  contains  something  against 
other  acts  of  Parliament,  or  injurious  to  the  public  or  the 
shareholders,  f  (a) 

An  interesting  question  in  regard  to  the  passage  of  laws 
has  presented  itself  in  this  country,  growing  out  of  the  con- 
stitutional provisions  in  some  of  the  States,  requiring  the 
concurrence  and  assent  of  certain  prescribed  legislative  majori- 
ties, as  two- thirds  of  the  members  present,  or  a  majority  of  all 
the  members  elected.  J  In  these  cases,  it  was  for  some  time 
doubted  how  it  was  to  be  ascertained  whether  the  requisite 


*  Harris  v.  Roof's  Executors,  10  Barb. 
489.  But  does  not  the  learned  judge,  too 
probably,  "  paint  men  as  they  should  be,  nol 
as  they  are?" 

f  Shrewsbury  and  Birmingham  R.  Co. 
v.  London  and  North  Western  Co.  2  Mac- 
naghten  and  G.  324. 

\  Thus  the  former  Constitution  of  New 
York  (of  1821)  declared,  Art.  i,  §  12,  that— 
Where  a  bill,  having  once  passed  the  two 
branches,  is  returned  by  the  governor  for 
reconsideration,  it  must  be  passed  by  two- 
thirds  of  the  members  present  of  each  branch. 
The  same  provision  exists  in  the  Constitution 
of  1846,  Art.  iv,  §9.  So  again,  Art.  vii, 
§  9,  declared  that  "  the  assent  of  two-thirds 
of  the  members  elected  to  each  branch  of 
the  Legislature,  shall  be  requisite  to  every 
bill  appropriating  the  public  moneys  or 
property  for  local  or  private  purposes,  or 
creating,  continuing,  altering,  or  renewing 
any  body  politic  or  corporate." 

In  the  same  State,  the  Constitution  of 
1846  provides,  by  Art.  i,  §  9,  that  "  the 
assent  of  two-thirds  of  the  members  elected 
to  each  branch  of  the  Legislature,  shall  be 
requisite  to  every  bill  appropriating  the  public 
moneys  or  property  for  local  or  private  pur- 
poses." And  again,  by  Art.  iii,  §  15,  that 
"  no  bill  shall  be  passed  unless  by  the  assent 
of  a  majority  of  all  the  members  elected  to 
b  ,ch  branch  of  the  Legislature."  And  again, 
ey  Art.  vii,  §14,  that  "  on  the  final  passage, 


in  either  house  of  the  Legislature,  of  every 
act  which  imposes,  continues,  or  revives  a  tax, 
or  creates  a  debt  or  charge,  or  makes,  con- 
tinues, or  revives  any  appropriation  of  public 
or  trust  money,  or  property,  or  releases,  dis- 
charges or  commutes  auy  claim  or  demand  of 
the  State, — the  question  shall  be  taken  by 
ayes  and  noes,  which  shall  be  duly  entered  on 
the  journals,  and  three-fifths  of  all  the  members 
elected  to  either  house  shall  in  all  such  cases 
be  necessary  to  constitute  a  quorum  therein." 
And  again,  by  Art.  xi,  §  6,  that  "  in  case  the 
mode  of  election  and  appointment  of  militia 
officers  hereby  directed,  shall  not  be  found 
conducive  to  the  improvement  of  the  militia, 
the  Legislature  may  abolish  the  same,  and  pro- 
vide by  law  for  their  appointment  and  removal, 
if  two-thirds  of  the  members  present  in  each 
house  shall  concur  therein." 

So  in  Michigan,  "The  assent  of  two-thirds 
of  the  members  elected  to  each  house  of  the 
Legislature,  shall  be  requisite  to  every  bill 
appropriating  the  public  money  or  property 
for  local  or  private  purposes." — Cons.  Art.  i, 
§45. 

So  in  Indiana,  Cons.  Art.  iv,  §  25.  "  A 
majority  of  the  members  elected  to  each 
house  shall  be  necessary  to  pass  any  bill  or 
joint  resolution." 

So  in  Illinois,  Art.  iii,  §21.  "No  bill 
shall  become  a  law  without  the  concurrence 
of  a  majority  of  all  the  members  elect  in 
each  house." 


(a)  Motives  of  legislators  are  not  to  be  inquired  into.  Ex  parte  Newman,  9  Cal. 
502;  People  v.  Shepard,  86  N.  T.  285;  Harpending  v.  Haight,  39  Cal.  189;  State 
v.  Hays,  49  Mo.  604 ;  Bradshaw  v.  Omaha,  1  Neb.  16.  Even  where  the  State  is 
plaintiff,  as  in  a  quo  warranto.  McCnlloch  v.  State,  11  Ind.  424.  Whether  a  statute 
not  showing  fraud  on ,  its  face,  can  be  impeached  for  fraud,  and  if  so,  whether 
otherwise  than  in  a  direct  proceeding,  qucere.  Wetmore  v.  Law,  84  Barb.  515 ;  Oakland 
v.  Carpantier,  21  Cal.  642.  That  debates  of  constitutional  conventions  are  not  to  be 
looked  to  for  intent,  see  Taylor  v.  Taylor,  10  Minn.  107. 


CONSTITUTIONAL  MAJORITIES.  55 

number  of  votes  had  been  obtained ;  *  whether  the  printed 
statute  book,  or  the  certificate  of  the  Secretary  of  State,  should 
be  received  as  conclusive  evidence,  or  not.  But  that  doubt  is 
now  resolved,  and  it  is  settled  that  the  judges  may,  and  if  they 
deem  it  necessary  should,  look  beyond  the  printed  statute 
book,  and  examine  the  original  engrossed  bills  on  file  in  the 
office  of  the  Secretary  of  State ;  and  it  seems  that  the  journals 
kept  by  the  two  houses  may  also  be  consulted.f  (a) 

*  Thomas  v.  Dakin,  22  Wend.  9 ;  Warner  f  Purdy  v.  The  People,  4  Hill,  384  ;  De 

v.  Beers,  23  Id.  103;  The  People  v.  Purdy,  Bow  v.  The  People.  1  Denio,  9 ;  Commercial 
2  Hill,  31.  Bank  of  Buffalo  v.  Sparrow,  2  Denio,  97. 

(//)  Journals. — Journals  are  conclusive  evidence.  McCulloch  v.  State,  11  Ind. 
424.  Journals,  records  of  the  Secretary  of  State,  &c.  may  be  resorted  to,  to  fix  the 
date  of  approval,  when  the  date  on  the  statute  is  simply  "  Dec.  4."  Gardner  v.  Col- 
lector, 6  Wall.  499.  Journals  will  be  looked  to.  Fordyce  v.  Godman,  20  Ohio, 
K  S.  1;  Turley  v.  Logan,  17  111.  151;  Prescott  v.  Illinois,  &c.  Canal,  19111.  324; 
Burr  v.  Ross,  19  Ark.  250;  State  v.  Platt,  2  Rich.  N.  S.  150  ;  and  a  provision  in  the 
enrolled  bill  different  from  that  in  the  bill  as  presented  to  the  governor  has  no  force. 
State  v.  Platt,  ubi  supra.  The  original  bills,  as  well  as  journals,  may  be  looked  into, 
and  where  a  compliance  with  the  provisions  of  the  Constitution  can  be  "  spelled 
out"  from  loosely  kept  records,  it  will  be  done.  Supervisors  v.  Heenan,  2  Minn.  330. 

That  the  court  will  not  go  behind  the  statute  as  enrolled,  if  properly  authenti- 
ticated,  see  Sherman  v.  Story,  30  Cal.  253 ;  Swann  v.  Buck,  40  Miss.  268;  Evans  v. 
Browne,  30  Ind.  514  ;  and  will  not  go  behind  the  engrossed  bill  to  the  journals  to 
see  what  the  terms  of  the  law  are.  Fouke  v.  Fleming,  13  Md.  392  ;  Mayor,  &c.  v. 
Harwood,  32  Md.  471.  See  People  v.  Devlin,  33  N.  Y.  269 ;  People  v.  Starne,  35 
111.  121. 

Whether  the  insertion  by  inadvertence  of  distinct  matter  in  making  a  copy  of  an 
engrossed  bill  for  enrollment  will  invalidate  the  whole,  such  new  matter  not  affect- 
ing the  original  bill,  see  Jones  v.  Hutchinson,  43  Ala.  721. 

Publication. — Error  in  publication  will  not  vitiate  the  statute  :  thus,  where  the 
Constitution  required  the  laws  to  be  "promulgated"  in  English  and  French,  and 
there  was  an  error  in  the  French  translation  published.  State  v.  Ellis,  12  La.  Ann. 
390;  see  also  State  v.  Judge,  14  La.  Ann.  491.  When  the  Legislature  enacted  that 
a  statute  should  be  published  in  certain  newspapers,  and  take  effect  from  such  pub- 
lication, and  such  publication  is  properly  made,  and  corresponds  to  the  original  act, 
it  will  be  in  force,  though,  as  published  in  the  session  laws,  the  act  is  different. 
State  v.  Donehey,  8  Clarke  (la.)  396.  The  Constitution  provided  that  "  no  law  of 
the  General  Assembly  of  a  public  nature  should  take  effect  until  the  same  was  pub- 
lished and  circulated  in  the  several  counties  of  the  State  by  authority ;  "  and  that 
"if  the  General  Assembly  should  deem  any  law  of  immediate  importance,  they  may 
provide  that  the  same  shall  take  effect  by  publication  in  newspapers  in  the  State." 
It  seems  not  to  be  necessary  for  the  Legislature  to  declare  that  they  deemed  the  law 
to  be  of  immediate  importance.  Ibid.  But  under  a  similar  but  more  explicit  con- 
stitutional provision  in  Indiana,  that  the  emergency  should  be  declared  in  the  act  or 
preamble,  it  was  held,  that,  in  the  absence  of  such  express  declaration,  the  statute 
would  not  take  effect  at  once,  notwithstanding  the  statute  itself  contained  a  provision 
that  it  should  go  into  effect  at  oace.  Mark  v.  State,  15  Ind.  98.  It  is  not  essential 


5G  AUTHORITY  AND   JURISDICTION. 

We  have  thus  far  considered  statutes   in  their  incipient 
stages ;  we  are  now  to  consider  the  attributes  and  incidents  of 

O  ' 

laws  regularly  and  constitutionally  passed;  and,  first,  let  us 
examine  their 

Authority  and  Jurisdiction*—  It  is  well  settled,  that  while 

*  Mr.  Dwarris  (vol.  ii,  p.  516)  thus  enu-  of  the  punishment  prescribed,  e.g.,  the  stocks, 

merates  the  incidents  of  statutes.     Hisenume-  see  O'Hanlon  v.  Myers,  10  Rich.  Law,  128; 

ration  includes  some  maxims  which  are  equally  Hill  v.    Smith,   1    Morris  (la.)  70;    and  see 

applicable  to  the  common   law,  and  those  I  Commonwealth  v.  Borden,  61  Penn.  St.  272. 

have  omitted:  — EDITOR.] 

I.  An  act  of  Parliament  binds  all  persons,          V.  When  statutes   are  made,   there   are 
but  such  as  are  specially  saved  by  it. — And.  some  things  which  are  exempted  and  forc- 
148,  pi.  82.  prized  out  of  the  provisions  thereof  by  the 

II.  A  statute  which  gives  corporal  pun-  law  of  reason,  though  not  expressly  mention- 
ishment  does  not  bind  an  infant.     Contra  of  ed ;  thus,  things  for  necessity's  sake,  or  to 
other  statutes,  if  they  do  not  except  infants,  prevent  a  failure  of  justice,  are  excepted  out 
— Doc.  and  Stud.  lib.  2,  fol.  113.  of  statutes. — Plowd.  Com.  13  b. ;  2  7ns/.  118. 

HI.  Every  statute  made  against  an  injury  [If  a  statute  prohibits  an  act  except  on 

gives  a  remedy  by  action,  expressly  or  im-  the  performance  of  an  impossible  condition, 

pliedly. — 2  Inst.  55.  the  prohibition  is  absolute.  State  v.  Doug- 

IV.  An  act  of  Parliament  cannot  alter  by  las,  5  Sneed,  608.  A  statute  must  receive  a 

reason  of  time ;  but  the  common  law  may,  sensible  construction,  although  this  should 

since  eessanfe  ratione,  cessat  lex. — Sir.  190.  limit  the  universality  of  its  terms ;  and  where 

[Obsolete  Statutes. — That  statutes  may  be-  the  Legislature  has  used  language  broad 

come  inoperative  by  non-use  and  from  disuse  enough  to  impose  impossible  conditions  upon 

that  the  approval  of  the  governor  should  appear  in  the  printed  laws,  if  it  is  shown 
by  the  record.  Dishon  v.  Smith,  10  Iowa,  212.  Verbal  inaccuracies  in  the  publica- 
tion not  affecting  the  substantial  meaning  do  not  vitiate  the  statute.  Smith  v.  Hoyt, 
14  Wise.  252.  The  date  of  approval,  and  not  that  of  publication,  must  determine 
priority  in  questions  as  to  construction  and  intent.  Mead  v.  Bagnall,  15  Wise.  156. 

Approval  by  Governor. — Interesting  questions  have  arisen  as  to  bills  becoming 
laws  without  executive  approval,  and  as  to  the  stage  of  legislation  at  which  a  bill  is 
beyond  recall  by  either  house.  See  opinion  of  Justices,  45  N.  H.  607 ;  People  v. 
Devlin,  33  N.  Y.  269 ;  People  v.  Hatch,  33  111.  9  ;  Jones  v.  Hutchinson,  43  Ala.  721 ; 
Commonwealth  v.  Jackson,  5  Bush  (Ky.)  680  ;  Evans  v.  Brown,  30  Ind.  514 ;  Paine 
v.  Lake  Erie,  &c.  R.  R.  31  Ind.  283 ;  Brodnax  v.  Groom,  64  N.  C.  244.  That  the 
governor  may  sign  after  adjournment,  see  People  v.  Bowen,  30  Barb.  24.  When  a 
message  of  approval  was  taken  to  the  house  by  the  governor's  private  secretary 
through  mistake,  he  supposing  that  the  bill  was  approved  by  the  governor, — the  bill 
having  in  fact  been  signed  by  him  inadvertently,  and  left  on  his  table,  which,  by 
established  routine,  authorized  the  private  secretary  to  communicate  the  message  he 
did,  but  a  message  was  at  once  sent  by  the  governor  to  the  house  explaining  the 
mistake,  and  shortly  after  the  bill  itself  was  returned  to  the  house  with  the  govern- 
or's objections,  and  with  his  signature  erased,  the  bill  not  having  been  out  of  his 
hands, — Held,  that  the  bill  had  not  become  a  law.  There  was,  the  court  says,  a 
locus  pcenitentw  while  it  remained  in  his  hands,  even  if  he  had  not  signed  it  inad- 
vertently, and  if  the  first  message  had  not  been  unauthorized.  People  v.  Hatch,  19 
111.  283. 

When  a  bill  is  amended  in  one  house  and  returned  to  the  other,  and  no  vote  is 
there  had  upon  it  as  amended,  it  is  not  a  law.  Prescott  v.  Illinois,  &c.  Canal,  19 
HI.  324.  As  to  the  power  of  one  branch  of  the  Legislature  sitting  without  the  other, 
see  Adams  v.  Hilyer,  2  Kans.  17.  As  to  acts  passed  at  special  sessions,  see  Jones  v. 
Theall,  3  Nev.  233 ;  Morford  v.  linger,  8  Clarke  (la.)  82. 


AUTHORITY  AND  JURISDICTION.  57 

every  nation  possesses  an  exclusive  jurisdiction  within  its  own 
boundaries,  neither  Constitutions  nor  statutes  have  any  intrin- 
sic force,  ex  proprio  vigore,  beyond  the  territory  of  the  sover- 
eignty which  enacts  them,  and  the  respect  which  is  paid  to 
them  elsewhere  depends  on  comity  alone.*  A  modification  of 
this  principle  is  contained  in  the  proposition  that,  although  the 
laws  of  a  country  have  no  direct  controlling  force  except  within 
its  own  limits,  yet  that  every  nation  has  a  right  to  bind  its  own 
subjects  by  its  own  laws  in  any  place,  that  is  to  say,  when  they 
return  within  its  territorial  jurisdiction  so  as  to  give  an  oppor- 
tunity to  exercise  sovereignty  over  them.f  This,  however, 
involves  the  consideration  of  the  question  of  allegiance  and  of 
its  duration,  which  do  not  properly  fall  within  the  scope  of  this 
work.  As  a  general  proposition,  the  rule  is  good,  that  no 
nation  is  bound  to  respect  the  laws  of  another  nation,  except 
as  to  persons  or  property  within  the  limits  of  the  latter.  This 
is  the  general  rule  of  our  law,  and  this,  too,  is  the  lan<mao;e  ,  of 

O  777  O  O 

the  great  civilians.  "  Constat,  igitur"  says  Rodenburg,^  "extra 
territorium  leg  em  dicer  e  licere  nemini,  idque  si  fecerit  quis,  im- 
pune  ei  non  pareri,  quippe  ibi  cessat  statutorum  fundamentum, 
robur,  et  jurisdiction  " Nullum  statutum"  says  P.  Voet,  ||  "  sive 
in  rem,  sive  in  personam,  si  de  rations  juris  civilis  sermo  insti- 
tuatur  sese,  extendit  ultra  statuentis  territorium"  And  so  says 

the  exercise  of  known  rights,  it  will  be  con-  cedere  videlur  et  id  per  quod  devenitur  ad  illuil 
sidered  that  such  a  result  could  not  have  (2  Jn-it.  366;  12  Hep.  130,  131);  and  Qu<indo 
been  intended.  Thus  when  a  demand  upon  aliquod  prohibetur,  prohibetur  et  omne  per 
an  administrator  was  made  a  prerequisite  to  quod  devenitur  ad  illud. 
a  suit  against  his  sureties,  it  was  held  that  IX.  If  an  offence  be  made  felony  by  a 
when  the  administrator  was  dead,  no  demand  statute,  such  statute  does,  by  necessary  con- 
was  necessary,  and  the  suit  could  be  main-  sequence,  subject  the  offender  to  the  like 
tained.  People  v.  Admire,  39  111.  251. — ED-  attainder  and  forfeiture,  and  does  require  the 
ITOR.]  like  construction  as  to  those  who  shall  be  ac- 

VI.  Whenever  an  act  gives  anything  gen-  counted  accessories  before  or  after  the  fact, 
erally,  and  without  any  special  intention  de-  and  to  all  other  intents  and  purposes,  as  a 
clared  or  rationally  to  be  inferred,  it  gives  it  felony  at  the  common  law  does. — Dwarris,  p. 
always  subject  to   the   general   control  and  $17. 

order  of  the  common  law. — Show.  455.  *  Story,  Confl.  Laws,  p.  7,  §  7  ;  p.  19,  § 

VII.  Whenever   a  statute   gives  or  pro-  18;  p.  20,  §  20;  Commonwealth  of  Kentucky 
vides  anything,  the  common  law  provides  all  v.  Bassford,  6  Hill,  p.  527 ;  Blanchard  v.  Rus- 
necessary  remedies  and  requisites.     The  Pro-  sell,  13  Mass.  1;  Bank  of  Augusta  v.  Earle, 
tector  v.  Ashfield,  Hard.  62;  1  Inst.  235;  2  13  Peters,  p.  5i9;  Op.  of  Taney,  C.  J.  p.  584. 
Inst.  225;  Eac.  Ab.  Tit.  Statute.  f  Story,' Conflict  Laws, p.  21,  §  21 ;  p.  23, 

VIII.  In   statutes,   incidents   are   always     §  22. 

supplied  by  intendments ;    in   other  words,  \  De  Stat.  ch.  3,  §  1,  p.  7 ;  Story,  Confl. 

wherever   a  power  is  given   by  a   statute,  of  Laws,  §  21. 

everything   necessary  to  the  making    of  it  |  De  Stat.  §  4,  ch.  2,  n.  7,  p.  124;  Id.  130, 

effectual   is  given    by  implication,   for    the  138,  ed.  1661. 

maxim  is,   Quando  lex  aliquid  concedit,  con- 


58  AUTHORITY  AND  JURISDICTION. 

Boullenois:  "Of  strict  right,  no  laws  made  by  a  sovereign 
have  any  force  or  authority  except  within  the  limits  of  his 
dominion."  *  "  A  sovereign,"  says  Toullier,  "  can  issue  his 
commands  to  his  own  subjects  only;  his  power  does  not  extend 
to  foreigners."  f  (a) 

Within  each  jurisdiction,  however,  the  law  binds  all  alike.* 
Lex  uno  ore  omnes  alloquitur.  This  maxim,  says  Lord  Coke,  is 
the  pride  of  the  English  law.  J  It  is,  indeed,  proper  to  bear  in 
mind  that  this  principle,  that  within  the  limits  of  its  jurisdic- 
tion, the  law  controls  alike,  without  distinction,  the  property 
and  condition  of  all  those  who  inhabit  the  territory,  paying  no 
regard,  as  a  general  thing,  to  the  birth-place  or  origin  of  any 
particular  individual,  is  of  modern  introduction,  and  results 
from  the  increased  equality  and  intercourse  that  our  times  have 
created.  At  Rome,  there  were  two  systems  of  law,  one  for 
citizens  and  the  other  for  foreigners ;  and  in  the  middle  ages 
the  distinction  was  even  more  striking.  "  In  the  same  district," 
says  Savigny,  "  in  the  same  town,  the  Lombard  lived  under  the 
Lombard  law,  the  Roman  under  the  Roman  law.  The  charac- 
teristics of  personal  laws  are  equally  visible  in  the  individuals 
of  the  different  Germanic  tribes ;  and  the  Franks,  the  Bur- 
gundians,  the  Goths,  lived  on  the  same  soil,  each  under  his 
own  law.  This  is  the  explanation  of  the  following  passage,  in 
a  letter  from  Agolardus  to  Louis  le  Debonnaire :  '  We  often 
see  talking  together  five  persons  of  whom  no  two  obey  the 
same  law.' "  |  The  most  prominent  remains  of  this  system  in 
our  time  are  to  be  found  in  the  disabilities  of  aliens,  fast 

*  "  De  droit  etroit,  toules  les  lois  que  fait  Remain  d'apres  la  loi  Remain.  L'esprit  des 

Bn  souverain  n'ont  force  et  autorite  que  dans  lois  personelles  repnait  egalement  parmi  les 

1'etendue  de  sa  domination." — 1  Boullenois,  individus  des  divers  tribus  Germaniques ;  et 

Prin.  Gen.  6,  p.  4.  les  Francs,  les  Bourguignons,  les  Goths,  viv- 

f  "  Le  souverain  ne  peut  commander  qu'ji  aient  sur  le  meme  sol  chacun  d'apres  son 

ses  sujets ;  sa  puissance  ne  s'etend  point  sur  droit.  Aussi  s'explique  le  passage  suiva,nt 

les  etrangers." — Toullier,  vol.  i,  p.  92 ;  Tit.  d'une  lettre  d'Agobardus  &  Louis  le  Debon- 

prel.  sect.  8,  §  112.  naire :  'On  voit  souvent  converser  ensemble 

{2  Inst.  184.  cinq  personnes  dont  aucun  n'obeit  aux  memes 

"  Dans  le  meme  pays,  dans  la  meme  ville,  lois.' " — Savigny,  Hi»t.  Droit  Roinain  au  Moyen 

le  Lombard  vivait  d'apres  la  loi  Lombarde,  le  Age,  ch.  3,  §  30. 

(a)  But  a  State  may  pass  laws  authorizing  certain  acts  to  be  done  outside  its 
limits,  and  may  prescribe  what  effect  they  shall  have  within  its  limits.  Chandler  v 
Main,  16  Wise.  398.  One  Legislature  cannot  bind  another,  except  by  an  act  which 
is  in  effect  a  contract.  State  v.  Oskins,  28  Ind.  369  ;  Swift  v.  Newport,  7  Bush  (Ky.) 
37  ;  see  "  Implied  Repeal." 


COMITY  OF  NATIONS.  59 

giving  way  before  a  more  enlightened  civilization ;  but  in  this 
country  tlie  peculiar  and  anomalous  position  of  the  Indian  and 
African  races  furnish  an  illustration  of  an  analogous  state  of 
things. 

To  the  general  rule  thus  stated,  there  exists,  however,  one 
'marked  exception,  growing  out  of  what  is  called  international 
comity.  How  far  the  laws  of  other  States  or  nations  will  be 
regarded  as  a  matter  of  comity,  depends  on  various  considera- 
tions. "  Whatever  extra-territorial  force,"  says  Mr.  Justice 
Story,  "laws  are  to  have,  is  the  result  not  of  any  original 
power  to  extend  them  abroad,  but  of  that  respect  which,  from 
motives  of  public  policy,  other  nations  are  disposed  to  yield  to 
them,  giving  them  effect,  as  the  phrase  is,  sub  mutuce  vicissi- 
tudinis  obtentu,  with  a  wise  and  liberal  regard  to  common  con- 
venience and  mutual  benefits  and  necessities."  *  "  Whatever 
force  and  obligation,  says  the  same  learned  writer,  f  "  the  laws 
of  one  country  have  in  another,  depend  solely  upon  the  laws 
or  municipal  regulations  of  the  latter,  that  is  to  say,  upon  its 
own  proper  jurisprudence  and  polity,  and  upon  its  own  express 
or  tacit  consent."  The  principles  of  comity  which  regulate  the 
action  of  the  municipal  law,  in  the  recognition  and  application 
of  foreign  law,  have  been  so  elaborately  examined  by  Mr.  Jus- 
tice Story,  that  I  shall  dismiss  this  branch  of  my  subject  with 
the  following  extract  from  his  great  work : 

"  No  nation,"  he  says,J  "  can  be  justly  required  to  yield  up  its  own  funda- 
mental policy  and  institutions  in  favor  of  those  of  another  nation.  Much  less 
can  any  nation  be  required  to  sacrifice  its  own  interests  in  favor  of  another,  or 
to  enforce  doctrines  which,  in  a  moral  or  political  view,  are  incompatible  with 
its  own  safety  or  happiness,  or  conscientious  regard  to  justice  and  duty.  It  is 
difficult  to  conceive,"  he  says  again, ||  "upon  what  ground  a  claim  can  be  rested 
to  give  to  any  municipal  laws  an  extra-territorial  effect,  when  those  laws  are 
prejudicial  to  the  rights  of  other  nations  or  to  those  of  the  subjects."  And 
again,^[  "The  true  foundation  on  which  the  administration  of  international  law 
must  rest  is,  that  the  rules  which  are  to  govern  are  those  which  arise  from 
mutual  interest  and  utility,  from  a  sense  of  the  inconvenience  which  would 
result  from  a  contrary  doctrine,  and  from  a  sort  of  moral  necessity  to  do 
justice,  in  order  that  justice  may  be  done  in  return."  And  again,**  "  There  is, 

*  Conflict  of  Laws.  p.  7,  §  7;  Saul  v.  His           |  Page  32,  §  32. 

Creditors,  17  Martin,  569.  «j[  Page  34,  §  35. 

t  Confl.  §  23,  p.  23.  **  Page  36,  §  38. 
\  Confl.  of  Laws,  p.  25,  §  25. 


CO  COMITY  BETWEEN  THE   STATES. 

then,  not  only  no  impropriety  in  the  use  of  the  phrase  '  Comity  of  Nations,' 
but  it  is  the  most  appropriate  phrase  to  express  the  true  foundation  and  extent 
of  the  obligation  of  the  laws  of  one  nation  within  the  territories  of  another. 
It  is  derived  altogether  from  the  voluntary  consent  of  the  latter,  and  is  inad- 
missible when  it  is  contrary  to  its  known  policy,  or  prejudicial  to  its  interests. 
In  the  silence  of  any  positive  rule  affirming  or  denying,  or  restraining  the 
operations  of  foreign  laws,  courts  of  justice  presume  the  tacit  adoption  of  them 
by  their  own  government,  unless  they  are  repugnant  to  its  policy  or  prejudicial 
to  its  interests.  It  is  not  the  comity  of  the  courts,  but  the  comity  of  the  nation, 
which  is  administered  and  ascertained  in  the  same  way,  and  guided  by  the  same 
reasoning  by  which  all  other  principles  of  the  municipal  law  are  ascertained 
and  guided." 

The  general  principles  to  which  I  have  been  referring  have 
"been  declared  applicable  to  the  States  of  this  Union.  While 
recognizing  the  central  federal  authority,  resulting  from  the 
Constitution  of  the  United  States,  they  hold  in  regard  to  each 
other,  with  the  exception  of  the  cases  governed  by  that  instru- 
ment, the  position  of  independent  and  foreign  powers.  So  it 
has  been  held,  that  bills  drawn  in  one  of  the  States  on  persons 
in  another,  are  to  be  treated  as  foreign  bills ;  and  the  Supreme 
Court  of  the  United  States  has  said,  "For  all  purposes  em- 
braced by  the  federal  Constitution,  the  States  and  the  citizens 
thereof  are  one,  united  under  the  same  sovereign  authority, 
and  governed  by  the  same  laws.  In  all  other  respects,  the 
States  are  necessarily  foreign  to  and  independent  of  each  other, 
their  Constitutions  and  forms  of  government  being,  although 
republican,  altogether  different,  as  are  their  laws  and  institu- 
tions," *  and  their  acts  have,  consequently,  no  extra-territorial 
authority,  f  But,  at  the  same  time,  the  States  of  the  Union 
recognize  in  regard  to  each  other,  to  a  certain  extent,  the  exist- 
ence of  the  same  principles  of  international  comity  which,  with 
reference  to  nations  wholly  independent  of  each  other,  we  have 
already  attempted  to  define.  In  a  case,  very  elaborately  argued  in 
the  Supreme  Court  of  the  United  States,  where  suit  was  brought 
in  the  State  of  Alabama  by  a  bank  incorporated  by  the  State 
of  Georgia,  on  a  bill  of  exchange  negotiated  to  the  agent  of  the 

*  Buckner  v.  Finley,  2  Peters,  686 ;  see,     State  of  Rhode  Island  v.  Massachusetts,  12 
to  same  point,  Lonsdale  v.  Brown,  4  Wash.     Peters,  p.  657. 

C.  R.   86,  and  2  Peters,  approving,  p.  688;  f  Blanchard  v.  Russell,  13  Mass.  1 ;  Bank 

Walter  v.   Ross,  2  Wash.   R.   283;  Bank  of    of  Augusta  v.  Earle,  13  Peters.  519;  Opinion 
U.  S.  v.  Daniel  et  al.   12  Peters,  p.  32;  and    of  Taney,  p.  584 ;  Commonwealth  of  Kentucky 

v.  Bassford,  6  Hill,  p.  527. 


COMITY   BETWEEN  THE   STATES.  61 

plaintiffs  within  the  State  of  Alabama,  it  was  insisted,  that  a 
corporation  could  not  contract  in  any  State  of  the  Union  but 
in  that  by  the  law  of  which  it  was  created,  and  that  its  exist- 
ence would  not  be  recognized  on  any  principle  of  comity ;  and 
the  Circuit  Court  of  the  United  States  so  decided;  but  on  writ 
of  error  to  the  Supreme  Court,  the  judgment  was  reversed,*  the 
Court  holding  this  language  : 

"It  has,  however,  been  supposed  that  the  rules  of  comity  between  foreign 
nations  do  not  apply  to  the  States  of  this  Union  ;  that  they  extend  to  one  another 
no  other  rights  than  those  which  are  given  by  the  Constitution  of  the  United 
States  ;  and  that  the  courts  of  the  general  government  are  not  at  liberty  to  pre- 
sume, in  the  absence  of  all  legislation  on  the  subject,  that  a  State  has  adopted 
the  comity  of  nations  towards  the  other  States  as  a  part  of  its  jurisprudence,  or 
that  it  acknowledges  any  rights  but  those  which  are  secured  by  the  Constitution 
of  the  United  States.  The  court  think  otherwise.  The  intimate  union  of  these 
States  as  members  of  the  same  great  political  family,  the  deep  and  vital  inter- 
ests which  bind  them  so  closely  together,  should  lead  us,  in  the  absence  of  proof 
to  the  contrary,  to  presume  a  greater  degree  of  comity,  and  friendship,  and 
kindness  toward  one  another,  than  we  should  be  authorized  to  presume  between 
foreign  nations.  And  when  (as  without  doubt  must  occasionally  happen)  the 
interest  or  policy  of  any  State  requires  it  to  restrict  the  rule,  it  has  but  to  de- 
clare its  will,  and  the  legal  presumption  is  at  once  at  an  end.  But  until  this  is 
done,  upon  what  grounds  could  this  court  refuse  to  administer  the  law  of  inter- 
national comity  between  these  States?  They  are  sovereign  States;  and  the 
history  of  the  past,  and  the  events  which  are  daily  occurring,  furnish  the  strong- 
est evidence  that  they  have  adopted  toward  each  other  the  laws  of  comity  in 
their  fullest  extent." 

It  was  certainly  very  difficult  successfully  to  contend  for  the 
principle  insisted  on  in  this  case  by  the  defendants,  for  it 
amounted  substantially  to  the  proposition  that  a  corporation  of 
one  State  can  do  no  commercial  business,  can  make  no  contract, 
can,  indeed,  do  nothing  in  any  other  State  of  the  Union  but  in 
that  in  which,  by  the  law  of  the  State,  it  has  been  created. 
But  the  doctrine  of  comity  between  the  States,  presents  itself 
in  other  and  more  important  aspects. 

So  in  regard  to  slavery,  the  question  has  arisen  whether  the 
owner  of  slaves  which  are  brought  from  a  State  where  domestic 
servitude  is  allowed,  and  taken  into  a  State  where  that  institu- 
tion is  absolutely  forbidden  by  its  municipal  legislation,  can  be 

*  Bank  of  Augusta  v.  Earle,  13  Peters,  519.     Mr,  Justice  McKinley  dissented. 


62  COMITY   BETWEEN  THE   STATES. 

protected  in  his  property  by  the  fact  that  the  slaves  are  merely 
in  transitu,  and  brought  in  with  the  Honafide  intention  of  tak- 
ing them  to  some  State  where  their  proprietor  may  lawfully 
hold  them.  This  proposition  has  been  affirmed  in  Illinois ;  *  it 
has  been  denied  in  New  York,f  and  has  been  left  in  doubt  by 
the  Supreme  Court  of  Massachusetts. £  It  is  not  seriously  as- 
serted that  the  owner's  right  can  be  maintained  under  the  Con- 
stitution of  the  United  States,  nor  that  in  this  sense  the  abso- 
lute prohibition  of  domestic  slavery  by  the  State  laws  is  uncon- 
stitutional ;  but  it  is  very  earnestly  insisted  that  property  in 
slaves,  under  these  circumstances,  is  protected  by  the  doctrine  of 
comity  which  we  have  above  discussed. 

The  point  is  very  far  from  being  free  of  difficulty,  and  if  the 
rule  of  comity  is  to  be  considered  as  settled  to  the  full  extent 
of  the  language  of  the  Supreme  Court  above  cited,  it  will  be 
difficult  to  show  that  it  does  not  cover  this  case ;  but  before  it 
shall  be  so  finally  determined,  much  reflection  is  necessary. 
The  doctrine  of  comity  has  been  established  and  applied  by 
powers  wholly  foreign,  entirely  distinct  from  and  independent 
of  each  other,  the  mutual  relations  of  whose  citizens  are  com- 
paratively rare,  and  almost,  if  not  quite,  exclusively  commercial, 
and  the  rules  of  whose  intercourse  rest  entirely  on  the  great  un- 
written law  of  nations,  of  which  this  comity  forms  in  fact  but  a 
part. 

Such  is  not  at  all  the  condition  of  the  States  of  this  Union. 
Thev  are  mutually  dependent  on  each  other  in  various  ways, 
and  all  recognize  in  certain  cases  a  common  sovereign ;  their  in- 
tercourse is  in  the  highest  degree  frequent  and  intimate ;  their 
relations  quite  as  much  political  as  commercial ;  and  they  have 
undertaken,  by  the  terms  of  a  carefully  prepared  instrument,  to 
declare  with  precision  their  relative  rights  and  duties.  In  this 
case,  to  substitute  for  the  clear  and  definite  language  of  the 
Constitution  anything  so  vague  and  uncertain  as  the  comity  of 
nations,  is  not  only  to  subject  the  relations  and  independence 
of  the  States  to  a  condition  of  alarming  perplexity,  but  to  make 
the  judiciary  the  sole  arbiter  of  the  gravest  political  questions, 

*  Willard  v.  The  People,  4  Scammon,  461.  \  Commonwealth  v.  Aves,  18  Pickering, 

f  People  V.  Lemon,  5  Sandford,  681.  193. 


PROOF  OF  STATE  LAWS.  63 

and  to  give  them,  in  framing  their  decisions,  no  better  guide 
than  a  fluctuating  and  unsettled  notion  of  international  courtesy. 

The  federal  Constitution  contains  a  provision  in  regard  to 
the  laws  of  the  States,  and  the  judicial  proceedings  of  their  tri- 
bunals, which,  though  it  gives  them  no  extra-territorial  eifect, 
has  still  some  bearing  on  our  present  subject.  The  Constitu- 
tion of  the  United  States,  by  Article  IV,  Section  1  of  that  in- 
strument, declares  that,  "  Full  faith  and  credit  shall  be  given  in 
each  State  to  the  public  acts,  records,  and  judicial  proceedings 
of  every  other  State ;  and  the  Congress  may,  by  general  laws, 
prescribe  the  manner  in  which  such  acts,  records,  and  proceed- 
ings shall  be  proved,  and  the  effect  thereof."  In  pursuance  of 
this  power,  the  Congress  of  the  United  States,  by  act  of  May 
26, 1790,  ch.  38,  provided  the  mode  by  which  records  and  judi- 
cial proceedings  should  be  authenticated.  Under  these  consti- 
tutional and  statutory  provisions,  various  decisions  have  been 
made,  the  general  result  of  which  is,  that  a  judgment  is  conclu- 
sive in  every  other  State,  if  a  court  of  the  particular  State  where 
it  was  rendered  would  hold  it  so.*  But  Congress  has  never 
acted  on  the  power  in  the  Constitution  as  to  the  public  acts  or 
laws  of  the  States,  any  further  than  to  declare  that  they  shall 
be  authenticated  by  having  the  seal  of  the  respective  States 
affixed  thereto ;  f  nor  is  this  method  regarded  as  exclusive  of 
any  other  which  the  States  may  adopt.J  And  the  States  have 
differed  as  to  the  manner  in  which  they  should  be  proved.  In 
some  cases,  strict  proof  of  them,  as  foreign  laws,  has  been  re- 
quired ;  but  the  courts  of  other  States,  and  the  Supreme  Court 
of  the  United  States,  influenced  by  the  peculiar  and  intimate 
connection  of  the  States,  have  shown  a  disposition  to  relax  the 
usual  rules  of  proof  in  this  respect ;  in  regard,  however,  to  the 
details  of  this  matter,  which  properly  belongs  to  the  domain  of 
evidence,  I  refer  the  reader  to  Mr.  Greenleaf 's  very  valuable 
work,  where  the  authorities  will  be  found  collected.  | 

The  student  of  American  law,  in  his  consideration  of  the 
subject  which  we  are  now  discussing,  will  not  forget  that  the 

*  Mills  v.  Duryee,  7  Cranch,  481 ;  Hamp-          \  Bank  of  Augusta  v.  Earle,  IS  Peters, 

ton   v.   McConnel,    3  Wheat.   234 ;    1    Kent.  525 ;  Ogden,  arguendo. 
Comm  p.  250,  and  cases  there  cited.  !j  Greenleaf  on  Evidence,  §  489. 

f  Act  of  26th  May,  1799,  ch.  38 


64  LAWS  OF   THE   STATES. 

laws  of  the  States,  as  has  been  already  intimated,  are  subject  in 
many  important  cases  to  the  power  of  the  Union ;  the  second 
section  of  the  sixth  article  of  the  federal  Constitution  declaring 
that,  "  The  Constitution  and  the  laws  of  the  United  States,  which 
shall  be  made  in  pursuance  thereof,  and  all  treaties  made,  or 
which  shall  be  made  under  the  authority  of  the  United  States, 
shall  be  the  supreme  law  of  the  land ;  and  the  judges  in  every 
State  shall  be  bound  thereby,  anything  in  the  Constitution  or 
laws  of  any  State  to  the  contrary  notwithstanding."  This  pro- 
vision necessarily  makes  the  States  subordinate  to  the  govern- 
ment of  the  Union,  in  all  matters  which,  by  the  federal  charter, 
fall  within  the  demesne  of  Congress ;  and  the  supremacy  of  the 
federal  government,  in  these  respects,  is  maintained  and  en- 
forced, as  we  shall  hereafter  see,  by  the  Supreme  Court  of  the 
United  States. 

While  discussing  the  question  of  the  territorial  effect  of 
statutes,  we  have  also  to  notice  an  interesting  question  which 
has  been  presented  in  this  country  with  reference  to  the  juris- 
diction of  the  States  over  criminal  acts  planned  or  contrived  in 
a  State  of  which  the  offending  party  is  a  citizen,  but  consum- 
mated in  another,  and  without  the  culprit  ever  being  actually 
present  in  the  latter  State.  It  is  well  settled,  as  a  general  rule 
that  penal  laws  have  no  extra-territorial  effect.*  And  so  a  State 
cannot  pass  an  act  making  the  offence  of  counterfeiting  its  cur- 
rent bills,  committed  out  of  the  State,  indictable  and  punishable 
in  its  courts,  f  But,  on  the  other  hand,  it  is  equalty  well  set- 
tled, that  in  the  case  put,  where  the  offence  is  contrived  in  one 
State  and  executed  in  another,  the  party  is  liable  to  the  criminal 
jurisdiction  of  the  State  where  the  offence  is  consummated, 
though  he  have  never  himself  been  within  the  limits  of  the 
latter  State.  So,  where  an  indictment  was  found  in  Massachu- 
setts against  a  resident  in  New  York  for  uttering  forged  notes 
in  the  first-mentioned  State,  through  an  innocent  agent,  the  de- 
fendant remaining  all  the  while  in  New  York,  the  defendant 
was  held  guilty  in  Massachusetts.  J  So  again,  where  one  was 
indicted  in  New  York  for  obtaining  money  by  fraudulent  pre- 

*  Scoville  v.  Canfield,  14  J.  R.  338.  J  Commonwealth  v.  Harvey,  8   Am.  Jur. 

f  State  v.  Knight,  Taylor's  N.  C.  Rep.  65.     69. 


TIME  WHEN  STATUTES  TAKE   EFFECT.  65 

tenses  from  a  firm  in  that  State,  by  exhibiting  to  them  fictitious 
receipts  for  property  signed  by  a  person  in  Ohio,  although  the 
defendant  was  a  citizen  of  Ohio  and  had  never  been  in  New 
York,  and  the  receipts  were  drawn  and  signed  in  Ohio,  and  the 
offence  was  committed  by  the  receipts  being  presented  in  New 
York  by  innocent  agents  employed  by  the  parties  in  Ohio, — it 
was  held  that  the  culprit  was  liable  to  the  civil  jurisdiction  of 
New  York.*  It  will  be  observed  that  these  are  cases  which 
apply  to  mala  per  se, — to  offences  against  persons  or  property 
which  are  such  in  all  civilized  countries ;  and  it  may  well  be 
doubted  whether  the  rule  would  hold  good  as  to  mere  mala 
prohibit^  as,  for  instance,  laws  to  protect  the  revenue  or  the 
currency,  of  which  the  alleged  offender  may  be  not  merely 
ignorant,  but  not  chargeable  with  knowledge. 

An  interesting  question  connected  with  the  present  branch 
of  our  subject  arises,  as  to  the  time  when  statutes  are  to  take 
effect.  The  old  English  rule  was,  that  if  the  act  was  not 
directed  to  operate  from  any  particular  time,  it  took  effect  from 
the  first  day  of  the  session  at  which  it  passed,  though  this  date 
was  purely  fictitious,  and  might  be  weeks  or  indeed  months 
before  the  act  was  assented  to  by  the  sovereign,  or,  in  fact,  even 
before  the  bill  was  brought  in ;  and  this  extraordinary  applica- 
tion of  the  doctrine  of  relation  was  actually  adhered  to  and 
acted  upon  in  England  as  late  as  the  latter  part  of  the  last  cen- 
tury.f  The  rule  was  finally  altered  by  the  statute  33  George 
III,  c.  13,  which  declared  that  laws  shall  operate  from  the  time 
of  their  receiving  the  royal  assent.  Where  two  statutes,  passed 

*  People  v.   Adams,   8  Denio,  190  ;  s.  o.  before  Lord  C.  J.  Holt,  Lord  C.  J.  Treby,  and 

on  appeal,!  Corns.  173.     See,  t'>  the  same  Mr.  Justice  Rokeby.    He  prayed  to  be  allowed 

point,  State  v.  Ellis,  3  Conn.  185  ;  Barkham-  counsel,  but  was  refused,  because  the  statute, 

stead  v.  Parsons,  3  Conn.  1 ;  Commonwealth  7  William  III,  c.  3,  allowing  counsel  to  per- 

v.  Gillespie,  7  Serg.  <fc  Rawle,  469  ;  People  v.  sons  indicted  for  treason,  did  not  go  into  effect 

Rathbun,  21   Wend.  509.     In  England,   the  till  the  next  day  after  that  on  which  he  w;\s 

rule  that  the  offence  is  considered  to  be  com-  tried.     It  waain  vain  that  the  prisoner  quoted 

mitted  where  it  is  consummated,  holds  good  a  part  of  the  preamble,  which  said  that  such 

as  between  the  different  counties,  and  as  be-  an  allowance  was  just  and  reasonable.     The 

tween  Ireland  and  England.     King  v.  Brisac,  reply  of  Lord  C.  J.  Holt  was,  that  he  must 

4  East,  164;  Rex  v.  Johnson,  6  East,  583;  administer  the  Hw  as  he  found  it,  and  could  not 

s.  c.  7  Id.  65.  anticipate  the  operation  of  an  act  of  Parlia- 

f  33  Henry  VI,  18  Bro.  33;   1  Lev,  91 ;  ment  by   even   a   single   day.     Sir  William 

Attorney-General  v.  Panter,  6  Bro.  P.  C.  486 ;  Parkyns  was  convicted   and  executed.     See 

Latless  v.  Holmes,  4  T.  R.  486  ;  Dwarris  on  the  case  reported  in  the  thirteentli  volume  of 

Stat.  p.  544;  R.  v.  Bailey,  R.  #  R.  C.  C.  1 ;  the  State  Trials,  Howell's  ed,  and  cited  in  Mr. 

1  Ru.ss.  C.  &  M.  109.     The  severity  of  the  old  Lieber's   Hermeneutics,     p.    118;     see     also. 

English  rule  is  well  illustrated  by  the  trial  of  Kent's  Com.  voJ.  i,  p.  456. 
Sir  William  Parkyns  for  high  treason,  in  1695, 
5 


GO  TIME  WHEN   STATUTES  TAKE   EFFECT. 

in  the  same  session  and  to  come  into  operation  on  the  same  day, 
are  repugnant  to  each  other,  it  is  held  that  the  act  which  last 
received  the  royal  assent  must  prevail.*  This  affords  a  curious 
instance  how  difficult  it  is  to  make  the  ancient  rules  of  law 
conform  to  those  of  logic  and  reason.  It  is  very  plain  that 
both  of  these  provisions  are  contrary  to  common  sense,  and 
may  often  produce  great  injustice.  It  is  impossible  that  the 
citizens  or  subjects  of  an  extensive  and  populous  country,  can 
obtain  any  accurate  knowledge  of  the  purport  of  an  act  on  the 
day  of  its  passage ;  and  the  doctrine  that  the  act  last  signed  is 
to  prevail  over  one  assented  to  a  few  hours  previous,  is  ob- 
viously arbitrary  and  unreliable.  The  evils  likely  to  result 
from  the  first  of  these  rules  are  now  often  obviated  by  a  section 
declaring  when  the  act  shall  go  into  effect ;  and  on  a  clause  of 
this  kind  it  has  been  decided,  that  although  in  an  act  it  is  ex- 

/  O 

pressly  declared  that  it  shall  commence  and  take  effect  from  a 
day  named,  yet  if  the  royal  assent  be  not  obtained  till  a  day 
subsequent,  the  provisions  of  a  particular  section,  in  its  terms 
prospective,  do  not  take  effect  till  such  subsequent  day.f 

The  Code  Napoleon  first  established  the  true  principle  as 
to  when  laws  should  take  effect.  It  declared  laws  to  be  bind- 
ing from  the  moment  that  their  promulgation  should  be 
known ;  and  that  the  promulgation  should  be  considered 
as  known  in  the  department  of  the  consular  or  imperial 
residence  one  day  after  the  promulgation,  and  in  each  of  the 
departments  after  the  expiration  of  the  same  space  of  time, 
augmented  by  as  many  days  as  there  were  distances  of  twenty 
leagues  between  the  seat  of  government  and  the  place.  J 

In  this  country,  the  mischievous  results  of  the  original  En- 
glish rule  are  usually  obviated  either  by  constitutional  or  stat- 
utory provisions.  So  in  Michigan,  a  constitutional  provision 
declares  |  that  "  no  public  act  shall  take  effect  or  be  in  force 
until  the  expiration  of  ninety  days  from  the  end  of  the  session 
at  which  the  same  is  passed,  unless  the  legislature  shall  other- 
wise direct  by  a  two-thirds  vote  of  the  members  elected  to  each 
house."  In  Mississippi,  the  Constitution  provides,  "  that  no  law 

*  Rex  v.  Justices  of  Middlesex,  2  B.  <fc  A.  ±  Code  Civil,  Art.  i ;  Kent's  Com.  i,  p.  458. 

818 :  2  Bing.  N.  C.  682;  Dwarris,  p.  544.  f  Cons.  Art.  iv,  §  20. 

f  Burn  v.  Carvalho,  4  Nev.  <fe  Man.  889. 


TIME  WHEN   STATUTES  TAKE  EFFECT.  67 

of  a  general  nature,  unless  otherwise  provided  for,  shall  be  en- 
forced until  sixty  days  after  the  passage  thereof."  *  And  in 
New  York  it  is  declared,  by  a  general  statute,f  that  "  every  law, 
unless  a  different  time  shall  be  prescribed  therein,  shall  com- 
mence and  take  effect  throughout  the  State,  on  and  not  before 
the  twentieth  day  after  the  day  of  its  final  passage,  as  certified 
by  the  secretary  of  state."  But,  in  regard  to  federal  legisla- 
tion, the  rule  is  supposed  to  be  identical  with  that  now  in 
force  in  England  :  that  every  law  takes  effect  on  the  day  of  its 
passage.  £  This  subject  is  of  no  small  consequence,  as  the  law 
is  assumed  to  be  known  by  every  citizen  from  the  time  fixed 
for  it  to  go  into  operation  ;  ignorantia  legis  neminem  excusat.  (a) 

*  Cons.  Art.  vii,  §  6.  Ann,  1  Gallison,  62;  1  Kent's  Com.  455;  but 

1  R.  S.  157,  part  i,  ch.  vii,  tit.  v,  §  13.         see  1  Paine,  23. 
Matthews  v.  Zane,  7  Wheaton,  164;  The 

(«)  Unless  a  different  time  is  specified,  an  act  takes  effect  from  its  approval. 
Taylor  v.  State,  31  Ala.  383.  The  "  time  of  passage  "  is  when  the  act  has  gone 
through  all  the  constitutional  forms,  including  the  approval  of  the  governor;  and  a 
law  cannot  impair  the  obligation  of  a  contract  made  before  its  final  passage.  Wart- 
man  v.  Phil.  33  Penn.  St.  202.  When  a  statute  goes  into  effect  from  its  approval,  it 
is  in  force  the  whole  day  of  its  approval.  Maliory  v.  Hiles,  4  Mete.  (Ky.)  53.  But 
when  an  act  taking  away  jurisdiction  from  justices  of  the  peace,  except  in  actions 
already  pending,  is  by  its  terms  to  take  effect  from  its  passage,  it  will  not  affect  an 
action  brought  on  the  same  day  of  its  passage,  unless  shown  to  have  been  com- 
menced at  a  later  hour.  Kennedy  v.  Palmer,  6  Gray,  316.  "Prior  to  the  passage," 
means  prior  to  the  going  into  effect  of  a  law.  Charless  v.  Lamberson,  1  Clarke  (la.) 
435.  That  where  an  act  takes  effect  from  its  passage,  it  is  in  force  from  the  first  day 
of  the  session,  see  Hamlet  v.  Taylor,  5  Jones,  Law,  36.  Where  a  Constitution  de- 
clared that  no  bill  should  have  the  "  force  of  law  "  until  read  three  times,  and  signed 
by  the  President  and  Speaker,  and  sealed  with  the  great  seal,  it  was  held  that 
statutes  took  effect  on  the  completion  of  these  ceremonies,  and  not  from  the  first  day 
of  the  session.  State  v.  The  Banks,  12  Rich.  L>w,  609.  A  statute  passed  Feb.  4, 
1859,  and  not  going  into  effect  until  ninety  days  after  the  close  of  the  session, 
namely,  in  May,  1859,  and  which  provides  for  an  election  to  be  held  in  "  April  next," 
must  be  understood  to  mean  April,  1863.  A  law  speaks  from  the  time  of  its  going 
into  effect.  Rice  v.  Ruddiman,  10  Mich.  125.  But  an  act  by  its  terms  taking  effect 
on  the  15th  of  a  May  next,"  passed  in  April,  but  not  approved  until  May  3d,  was 
held  to  mean  the  May  then  current.  Fosdick  v.  Perrysburg,  14  Ohio  N.  S.  472. 
Where  a  statute  by  its  terms  was  not  to  go  into  effect  until  a  certain  day,  and  yet 
provided  for  an  election  at  an  earlier  day,  such  provision  for  the  election  was  held 
to  be  a  nullity.  People  v.  Johnson,  6  Cal.  673.  If  a  revision  is  not  to  go  into  effect 
at  once,  the  clause  of  repeal  in  it  does  not  take  effect  until  the  revision  does.  Mc- 
Arthur  v.  Franklin,  16  Ohio,  N.  S.  193.  And  a  repealing  clause,  though  in  tha 
present  tense,  does  not  operate  until  the  act  itself  does.  Lyner  v.  State,  8  Ind.  490. 
The  Constitution  of  Indiana  provides  :  "  No  act  shall  take  effect  until  the  same  shall 
nave  been  published  and  circulated,  etc.,  except  in  case  of  emergency,  which  einer- 


C8  TIME  WHEN   STATUTES   TAKE   EFFECT. 

This  maxim  has,  however,  no  more  than  the  laws  themselves, 
any  extra-territorial  application;  for  the  doctrine  has  been 
declared  to  be,  that  citizens  of  another  country,  and  even,  in 
America,  of  another  State  of  the  Union,  are  not  chargeable 
with  a  knowledge  of  the  laws  emanating  from  any  jurisdiction, 
except  that  to  which  they  belong.  This,  however,  must  be 
certainly  taken  with  the  qualification  in  regard  to  mala  pro- 
hibita  and  mala  per  se,  to  which  I  have  already  referred,  and 
also  with  the  general  limitation  that  it  is  to  apply  rather  to 
civil  than  to  criminal  law.* 

Connected  with  this  branch  of  our  subject  is  another 
arbitrary  rule  of  the  English  law,  as  to  amendatory  statutes. 
An  act  of  Parliament  made  to  correct  an  error  of  omission 
committed  in  a  former  statute  of  the  same  session,  relates  back 
to  the  time  when  the  first  act  passed ;  and  the  two  must  be 
taken  together  as  if  they  were  one  and  the  same  act,  and  the 
first  must  be  read  as  containing  in  itself,  in  words,  the  amend- 
ment supplied  by  the  last ;  therefore,  goods  exported  before  a 
second  law  passed,  but  only  skipped  before  the  first,  of  which 
the  second  was  an  amendment,  was  enacted,  were  held  liable 

*  Curtis  \.  Leavitt,  17  Barb.  312,  317  ;  and    Merchants'  Bank  v.  Spalding,  Court  of  Ap- 
peals ;  cited  in  the  same. 

gency  shall  be  declared  in  the  preamble  or  in  the  body  of  the  law."  A  clause  in  a 
statute  that  it  should  go  into  effect  on  a  day  certain,  was  held  not  to  amount  to  the 
requisite  declaration  of  emergency  by  implication.  Hendrickson  v.  Hendrickson,  7  Ind. 
13.  Where  the  Constitution  provided  that  acts  should  not  go  into  effect  until  sixty 
days  after  the  end  of  the  session,  without  the  express  direction  of  the  Legislature,  it 
was  held  not  a  sufficiently  express  direction  that  the  act  required  an  election  to  be 
held  before  that  time,  and  the  provision  for  the  election  was  held  to  be  void.  Super- 
visors v.  Keady,  84  HI.  293.  But  where,  by  the  Constitution,  the  going  into  effect  of 
statutes  was  postponed  "  unless  otherwise  provided,"  it  was  held  that  the  fact  that 
statutes  of  the  same  session,  in  pari  materia,  alluded  to  a  statute  as  in  force,  was  suffi- 
cient to  give  it  immediate  effect.  Swann  v.  Buck,  40  Miss.  268.  And  where,  by  a  gen- 
eral statute,  it  was  declared  that  no  act  should  take  effect  until  sixty  days  after  its 
passage,  unless  so  expressed,  it  was  held  that  the  intent  to  have  the  law  take  effect 
earlier  might  be  implied.  Standeford  v.  Wingate,  2  Duv.  (Ky.)  440.  Though  there 
be  a  general  statute  fixing  the  time  at  which  acts  are  to  go  into  effect,  the  Legis- 
lature has  full  power  over  the  subject,  and  may  provide  that  any  particular  act  shall 
go  into  effect  at  once.  New  Orleans  v.  Holmes,  13  La.  Ann.  502.  "  Forty  days  from 
its  passage,"  means  forty  days  from  the  signature  by  the  governor,  or  passage  over 
his  veto,  or  expiration  of  time  for  its  return,  if  neither  signed  nor  vetoed.  Logan 
v.  State,  3  Heisk.  (Tenn.)  442. 


CONTRACTS    IN  VIOLATION  OF  STATUFES.  69 

to  duties  imposed  by  the  latter  statute  on  the  exportation  of 
goods.* 

It  may  be  observed  in  this  connection,  in  regard  to  the 
authority  and  operation  of  laws,  that  in  conquered  or  ceded 
countries  which  have  laws  of  their  own,  those  laws  remain  in 
force  till  actually  altered ;  but  it  has  been  said  in  this  country, 
that  this  rule  "  is  for  the  benefit  and  convenience  of  the  con- 
quered, who  submit  to  the  government  of  the  conquerors,  or  in 
the  case  of  cession,  for  the  benefit  of  the  people  who  by  treaty 
submit  to  the  government  of  those  to  whom  their  country  is 
ceded,  and  was  not  applicable  to  the  condition  of  our  ancestors, 
as  the  Indians  did  not  submit  to  the  government,  but  withdrew 
themselves  from  the  territory  acquired."  f 

Contracts  in  Violation  of  Statutes. — The  principle  which 
enforces  obedience  to  laws,  is  carried  out  by  declaring  con- 
tracts growing  out  of  or  based  upon  the  infringement  of  a 
statute  to  be  void,  the  courts  refusing  to  aid  either  party  in 
enforcing  them.  This  is  the  general  course  of  the  decisions  in 
England,  and  in  this  country.  $  So,  where  sales  of  spirituous 
liquors  are  made  in  violation  of  the  positive  provisions  of  a 
statute,  the  sale  being  illegal,  the  whole  transaction  is  void, 
and  the  seller  can  sustain  no  action  therefor,  f  So,  where  con- 
tracts are  made  on  Sunday,  in  violation  of  the  laws  forbidding 
labor  and  business  on  that  day.^f  Nor  is  it  necessary  that  the 

*  Att.-General  v.  Pougett,  2  Price,  381 ;  2  Ohio,  489;  Omit  v.  Commonwealth,  21  Penn. 

Dwarris,  547.  426  ;  and  other  cases  on  the  Sunday  acts. 

•j-  State  v.  Buchanan,  5  Harris  and  J.R.  3  IT.  In  Ohio,  where  the  Constitution  declares 

\  Steers  v.  Lashley,  6  T.  R.  61 ;  Aubert  v.  the  indefeasible  right  of  all  men  to  worship 

Maze,  2  B.  &  P.  371 ;  Cannan  v.  Bryce,  3  B.  God  according  to  the  dictates  of  their  con- 

&  Aid.  179;  Brown  v.  Duncan,  10  B.  &  Ores,  science;  that  no  human  authority  can  inter- 

93;  Armstrong  v.  Toler,  11  Wheat.  258;  Ex  fere  with  the  rights  of  conscience;  that  no 

parte  Dyster,  in  re  Moline,  1  Meriv.  155 ;  man  shall  be  compelled  to  attend  or  support 

Bloom  v.  Richards,  22  Ohio,  388.  any  mode  of  worship  without  his  consent  ; 

I  Boutwell  v.  Foster,  24  Vermt.  485 ;  Ban-  that  no  preference  shall  be  given  by  law  to 
croft  v.  Dumas,  21  Verm.  456  ;  Barton  v.  Port  any  religious  society ;  and  prohibits  all  re- 
Jackson  and  U.  F.  Plank  Road  Co.  17  Barb,  ligious  tests, — it  has  been  expressly  decided, 
397 ;  Nellis  v.  Clark,  4  Hill,  424 ;  Hook  v.  that  neither  Christianity,  nor  any  other  sys- 
Gray,  6  Barb.  398 ;  s.  o.  4  Corast.  449 ;  Pen-  tern  of  religion,  is  a  part  of  the  law  of  the 
nington  v.  Townsend,  7  Wend.  276  ;  Tylee  v.  State,  and  that  the  statute  prohibiting  labor 
Tates,  3  Barb.  S.  C.  R.  222.  on  the  Sabbatu  is  a  mere  municipal  or  police 

T  Fennell  v.  Ridler,  5  B.  &  C.  406 ;  Smith  regulation ;  Bloom  v.  Richards,  22  Ohio,  887. 

v.  Sparrow,  4  Bing.  84 ;  Towle  v.  Larrabee,  In  Pennsylvania  and  South  Carolina,  also,  the 

26  Maine,  464 ;  Lovejoy  v.  Whipple,  18  Verm.  Sunday  laws  seem  to  have  been  sustained  on 

379;  Pattee  v.  Greely,  13  Met.  284;  O'Don-  the  same  ground;  Specht  v.  The  Common- 

nellv.  Sweeney,  5  Ala.  467;  Adams  v.Hamell,  wealth,  8  Barr,  312;  The  City  Council  of 

2  Doug.  Mich.  11.  73  ;  Bloom  v.  Richards,  22  Charleston  v.  Benjamin,  2  Strob.  Law  R.  508. 

Ohio,  388;  overruling,  Sellers  v.  Dugan,  18  The  language  of  the  Sunday  laws  varies  in  the 


70  CONTRACTS    IX  VIOLATION    OF   STATUTES. 

contract  should  violate  the  express  words  of  a  law,  for  agree- 
ments contrary  to  the  policy  of  statutes  are  equally  void ;  so, 
an  agreement  to  pay  a  creditor  a  sum  of  money  if  he  will 
withdraw  his  opposition  to  an  insolvent's  discharge,  is  void,  as 
contrary  to  the  policy  of  the  insolvent  act.*  Nor  does  it  make 
any  difference  whether  the  law  is  a  general  one,  or  merely  of 
local  or  municipal  application.  So,  where  the  amended  charter 
of  the  city  of  New  York  provided  "  that  no  member  of  either 
board  of  the  common  council  should,  during  the  period  for 
which  he  was  elected,  be  directly  or  indirectly  interested  in 
any  contract,  the  expenses  or  consideration  whereof  are  to  be 
paid  under  any  ordinance  of  the  common  council,"  it  was  held 
that  a  note  growing  out  of  a  purchase  for  supplying  the  city 
alms-house  with  coal,  under  a  contract  in  which  a  member  of 
the  city  government  was  interested,  given  for  the  share  of 
profits  accruing  to  such  member,  was  void,  and  could  not  be 
enforced  either  by  the  party  himself  or  his  assignee,  f  So  an 
agreement  to  construct  a  roof,  in  the  city  of  New  York,  of  a 
kind  prohibited  by  a  statute  entitled  "  an  act  to  amend  an  act 
for  the  more  eifectual  prevention  of  fires  "  in  that  city,  is  void, 
and  the  contract  price  cannot  be  recovered.  £ 

So,  on  the  same  principle,  in  New  York,  where  an  act  for 
the  enlargement  of  the  canals  of  that  State  (July  10,  1851) 
was  declared  unconstitutional  and  void ;  contracts  under  the 
act  were  also  held  to  be  void.  |  It  has  also  been  decided  that 
the  transfer  of  such  a  contract  did  not  constitute  a  good  con- 
sideration for  a  promise  to  pay  money ;  and  the  circumstance 
that  the  purchasers  stipulated  to  take  the  risk  as  to  the  valid- 
ity of  the  act  of  the  Legislature,  while  the  question  was  pend- 
ing in  the  courts,  and  of  the  contract,  does  not  vary  the  law  of 
the  case.1]"  The  pension  acts  of  the  United  States,  generally, 

different  States.     In  New  York,  the  statute,  vertisement  in  a  newspaper  published  on  Stin- 

in  addition  to  the  prohibition  of  certain  sports  day  is  equally  void;  Smith  v.  Wilcox,  19  Bar- 

and  the  sale  of  goods  (with  certain  exceptions),  bour.  581. 

declares  that  "  there  be  no  servile  laboring  or  *  Nerot  v.  Wallace,  3  T.  R.  17 ;  Murray  v. 
working  on  that  day,  excepting  works  of  neces-  Reeves,  8  B.  &  C.  421 ;  Hall  v.  Dyson,  17  Ad. 
sity  and  charity."  [R.  S.  part  i,  chap,  xx,  tit.  8,  &  Ell.  N.  S.  785. 
art.  8,  vol.  i,  p.  676.]   Under  this  statute  it  has  f  Bell  v.  Quin,  2  Sandf.  146. 
been  he'd  that  an  attorney's  clerk  could  not  j  Beruan  v.  Tugnot,  5  Sandf.  154. 
recover  for  work  in  the  office  of  his  employer,  ||  Newell  v.  The  People,  3  Selden,  9 ;  Rod- 
done  on  Sunday;  Watts  v.  Van  Ness,  1  Hill,  man  v.  Munson,  13  Barb.  63. 
76  ;  and  that  an  agreement  to  insert  an  ad-  ^f  Sherman  v.  Barnard,  19  Barb.  291. 


CONTRACTS  IN  VIOLATION  OF    STATUTES.  71 

provide  that  the  pay  allowed  by  them  shall  not  be  in  any  way 
transferable,  but  shall  accrue  wholly  to  the  personal  benefit  of 
the  soldier  entitled  to  the  same.  This  is  the  provision  of  the 
act  of  June,  1832,  and  any  agreement  for  such  transfer,  in  any 
way  whatever,  would  be  void.  But  it  has  been  held,  that  an 
agreement  with  a  pensioner  entitled  to  an  addition  to  his  pen- 
sion, under  the  act  above  referred  to,  to  prosecute  the  claim  for 
the  augmentation,  and  in  consideration  to  receive  one-third  of 
the  addition  obtained,  would  be  valid.* 

We  have  also  to  notice  the  rule,  that  if  a  statute  inflict  a 
penalty  for  doing  an  act,  the  penalty  implies  a  prohibition,  and 
the  thing  is  unlawful,  though  there  be  no  prohibitory  words  in 
the  statute.  So,  where  a  statute  inflicts  a  penalty  on  a  simo- 
niacal  or  usurious  contract ;  this,  ipso  facto,  makes  the  contract 
void,  f  This  has  been  said  to  be  subject  to  the  general  excep. 
tion,  that  where  a  license  is  necessary  to  carry  on  a  particular 
trade  for  the  sole  purpose  of  raising  revenue,  and  the  statute 
only  inflicts  a  penalty  by  way  of  securing  payment  of  the 
license  money,  a  sale  without  a  license  would  be  valid.J  But 
if  the  statute  looks  beyond  the  question  of  revenue,  and  has 
in  view  the  protection  of  the  public  health  or  morals,  or  the 
prevention  of  fraud,  then,  though  there  be  nothing  but  a 
penalty,  a  contract  which  infringes  the  statute  cannot  be  sup- 
ported. 1  So,  where  an  excise  law  does  not,  in  terms,  prohibit 
the  sale  of  strong  liquors  without  a  license,  nor  declare  the  act 
illegal,  but  only  inflicts  a  penalty  upon  the  offender,  a  contract 
for  the  sale  of  such  liquors  is  void.^[ 

It  follows,  from  these  general  considerations,  that  when  a 
party  seeks  to  enforce  in  the  courts  of  one  State  a  contract 
which,  by  its  laws,  is  forbidden  and  void,  he  must  aver  and 
prove  that  it  was  made  in  a  State  where,  by  law,  it  was  author- 
ized and  valid.  So,  where  in  a  suit  brought  in  New  York  to 
recover  prize  money  drawn  by  tickets  owned  by  the  plaintiff 

*  Jenkins  v.  Hooker,  19  Barb.  435.  Smith,  1  Bin.  110;  Springfield  Bank  v.  Mer- 

f  Bartlett  v.  Viner,   Skin.   322;  Carthew,  rick,  14  Mass.  322;  Leidenbender  v.  Charles, 

351.  4  Serg.  <fe  Rawle,  159  ;  Hallet  v.  Noonar,  14 

J  Johnson  v.  Hudson,  11  East,  180 ;  Brown  J.  R.  273  ;  Griffith  v.  Wells,  and  cases  there 

v.  Duncan,  10  Barn.  &  Cres.  93.  cited,  3  Denio,  226. 

|  De  Begnis  v.  Armistead,  10  Bing.  107;  T  Griffith  v.  Wells,  3  Denio,  226. 

Cope  v.  Rowland,  2  M.  &  W.  149 ;  Mitchell  v. 


72  CONTRACTS  IN  VIOLATION  OF  STATUTES. 

in  a  lottery  drawn  in  Maryland,  and  alleged  to  be  authorized 
by  that  State,  the  complaint  did  not  show  where  the  tickets 
were  sold  or  purchased,  it  -was  held,  on  demurrer,  that  the 
plaintiff  showed  no  cause  of  action  in  New  York,  where  lot- 
teries are  absolutely  forbidden  by  law.  Gardiner,  J.,  said, 
"  The  plaintiff  is  bound  to  show,  on  the  face  of  his  complaint, 
that  his  title  was  acquired  in  a  jurisdiction  where  gambling  is 
authorized  by  law."  * 

A  grave  question  has  arisen  upon  this  branch  of  our  sub- 
ject, and  distinctions  have  been  sought  to  be  drawn  between 
contracts  violating  acts  relating  to  mere  police  regulations  or 
the  revenue,  and  those  contrived  to  defeat  the  operation  of 
laws  intended  to  declare  general  principles.  In  England;  how- 
ever, these  distinctions  appear  no  longer  to  exist ;  and,  in  a 
recent  case,  Baron  Parke  said,  "  Notwithstanding  some  dicta 
apparently  to  the  contrary,  if  the  contract  be  rendered  illegal, 
it  can  make  no  difference  in  point  of  law  whether  the  statute 
which  makes  it  so  has  in  view  the  protection  of  the  revenue, 
or  any  other  object."  f  This  would  result  in  a  simple  and 
uniform  rule,  making  void  all  contracts  growing  out  of  acts 
forbidden  by  law,  and  barring  all  actions  upon  them ;  but  the 
Supreme  Court  of  the  United  States  has  said  "  that  whatever 
may  be  the  structure  of  the  statute  in  regard  to  the  prohibition 
and  penalty,  or  penalty  alone,  it  is  not  to  be  taken  for  granted 
that  the  Legislature  meant  that  contracts  in  contravention  of  it 
are  void,  in  the  sense  that  they  are  not  to  be  enforced  in  a 
court  of  justice;  that  the  statute  must  be  examined  as  a  whole, 
to  find  out  whether  or  not  the  makers  meant  that  a  contract  in 
contravention  of  it  was  to  be  void,  so  as  not  to  be  enforced  in 
a  court  of  justice  ; "  and  applying  this  rule  of  construction  to 
the  case  of  a  note  given  for  slaves  exported  into  Mississippi,  in 
violation  of  the  statute  of  that  State  regarding  the  importation 
of  slaves,  they  held  that  an  action  would  lie.  £  I  cannot  but 
think  that  this  decision  introduces  a  distinction  altogether  too 
nice  and  refined  to  be  susceptible  of  practical  application. 

*  Thatcher  v.  Morris,  1  Kern.  437.     But  moral,  and  the  morality  of  which  certainly 

why  should   not  the  objection  go  further  ?  does  not  depend  on  its  locality. 
"Why  should  our  courts  sit  to  enforce  a  con-  f  Cope  v.  Rowland,  2  Mees.  &  W.  157. 

tract  which  the  State  utterly  prohibits  as  5m-          \  Harris  v.  Runnels,  12  Howard,  79. 


CONTRACTS   IN  VIOLATION  OF  STATUTES.  73 

It  does  not,  however,  follow  that  when  an  act  is  forbidden 
by  statute,  everything  done  in  contravention  of  the  act  is  to 
be  considered  void.  This  would  lead  to  results  of  too  serious 
a  character.  So,  in  regard  to  marriage,  where  a  statute  im- 
poses a  penalty  on  an  officer  for  solemnizing  the  union,  but 
does  not  in  words  declare  the  marriage  void,  as  in  Massachu- 
setts, in  regard  to  persons  above  the  age  of  consent,  but  below 
certain  other  periods  of  life ;  the  marriage  is  valid,  and  the 
penalty  only  attaches  to  the  officer  who  performs  the  act  ex- 
pressly prohibited.* 

It  must  be  further  borne  in  mind,  that  the  invalidity  of 
contracts  made  in  violation  of  statutes,  is  subject  to  the 
equitable  exception  that,  although  a  corporation,  in  making  a 
contract,  acts  in  disagreement  with  its  charter,  where  it  is  a 
simple  question  of  capacity  or  authority  to  contract,  arising 
either  on  a  question  of  regularity  of  organization  or  of  power 
conferred  by  the  charter,  a  party  who  has  had  the  benefit  of 
the  agreement  cannot  be  permitted,  in  an  action  founded  on  it, 
to  question  its  validity.  It  would  be  in  the  highest  degree 
inequitable  and  unjust,  to  permit  the  defendant  to  repudiate 
a  contract  the  fruits  of  which  he  retains.-)-  And  the  principle 
of  this  exception  has  been  extended  to  other  cases.  So,  a 
person  who  has  borrowed  money  of  a  savings  institution  upon 
his  promissory  note,  secured  by  a  pledge  of  bank  stock,  is  not 
entitled  to  an  injunction  to  prevent  the  prosecution  of  the 
note,  upon  the  ground  that  the  savings  bank  was  prohibited 
by  its  charter  from  making  loans  of  that  description.  J 

The  deference  paid  to  the  statute  law  is  expressed  in  the 
rule,  that  where  an  instrument  contravenes  a  rule  of  common 
law,  the  invalidity  is  confined  to  the  particular  clause;  but 
where  an  instrument  contains  a  clause  or  provision  in  contra- 
vention of  a  statute,  it  renders  the  whole  instrument  in  valid.  | 

7  11 

A  bond,  executed  in  pursuance  of  a  compulsory  statute,  must 

*  King  v.  Birmingham,  8  B.  <fe  C.  29;  Potter  v.  Bank  of  Ithaca,  5  Hill,  490;  Suy- 

Milford  v.  Worcester,  7  Mass.  48  ;  Parton  v.  dam  v.  Morris  Canal  and  Banking  Co.  5  Hill, 

Hervey,  1  Gray,  119.  491;    Sackett'a  Harbor  Bank  v.   Lewis  Co. 

f  Palmer  v.  Lawrence,  3  Sand.  S.  C.  162 ;  Bank,  11  Barb.  213. 

Steam  Navigation  Co.  T.  Weed,  IT  Barb.  378  ;  J  Mott  v.  U.  S.  Trust  Co  19  Barb.  568. 

Chester  Glass  Co.  v.  Dewey,   16  Mass.  94;  J  Nicholson  v.  Leavitt,  4  Sandf.  252. 

M'Cutcheon  v.  Steamboat  Co.  13  Penn.  R.  13  ; 


74  REMEDIES    FOR   THE   VIOLATION   OF   STATUTES. 

be  precisely  in  accordance  with  it ;  and  if  it  contains  provisions 
not  warranted  by  the  statute,  it  is  void.* 

Statutes  are  not  to  be  evaded,  any  more  than  they  are  to  be 
disobeyed.  So,  where  a  law  fixes  peremptorily  the  period  of 
taking  an  appeal  from  a  judgment,  the  court  cannot,  by  setting 
aside  the  judgment  and  directing  it  to  be  entered  anew  of  a 
later  date,  effect  the  object  of  extending  the  time  to  appeal,  f 

Of  Remedies  for  the  Violation  of  Statutes. — The  general 
rule  of  the  English  law  is,  that  where  a  man  has  a  temporal  loss 
or  damage  by  the  wrong  of  another,  he  may  have  an  action  on 
the  case  to  be  repaired  in  damages.  J  This  principle  is  carried 
out  and  applied  to  statutes  by  an  old  English  enactment,  which 
gives  a  remedy,  by  action  on  the  case,  to  all  who  are  aggrieved 
by  the  neglect  of  any  duty  created  by  law.)  And  the  general 
rule,  that  in  every  case  where  a  statute  enacts  or  prohibits  a 
thing  for  the  benefit  of  a  person,  he  shall  have  a  remedy  upon 
the  same  statute  for  the  thing  enacted  for  his  advantage,  or  for 
the  recompense  of  a  wrong  done  to  him  contrary  to  the  law  in 
question,  is  declared  by  the  text-writers  of  our  jurisprudence.*! 
If  a  new  right  is  created  by  statute,  and  no  remedy  prescribed 
for  the  party  aggrieved  by  the  violation  of  such  right,  the  court, 
upon  the  principle  of  a  liberal  or  comprehensive  interpretation 
of  the  statute,  will  presume  that  it  was  the  intention  of  the  Leg- 
islature to  give  the  party  aggrieved  a  remedy  by  a  common-law 
action  for  the  violation  of  his  statutory  right ;  and  he  will  be 
permitted  to  recover  in  an  appropriate  action  founded  upon  the 
statute.**  As  a  general  rule,  it  may  be  assumed  that  wherever 
a  power  is  given  by  statute,  everything  necessary  to  make  it 
effectual,  or  requisite  to  attain  the  end,  is  implied  ;  ff  and  that 
where  the  law  requires  a  thing  to  be  done,  it  authorizes  the 

*  People  v.  Mitchell,  4  Sandf.  466;  Peo-  \  1  Stat.  13  Edw.  I,  c.  60,  A.  D.  1285.     So 

pie  v.  Meighan,  1  Hill,  298;  in  tins  case,  the  says  Lord  Campbell,  C.  J.  in  Couch  v.  Steel, 

bond  was  void  by  express  provision  of  the  3  Ellis  <fe  Blackburn,  Q.  B.  402  and  stq. ;  but 

statute  ;  and  generally,  I  suppose,  if  a  bond  I  should  think  the  provision  only  applied  to 

given   uuder   a   statute   contains    provisions  the   acts    of    that    particular    parliament, — 

which  the  statute  does  not  contemplate,  the  "  Omnia  prcedicta  statuta."  See  2d  Ins*.  486. 
instrument  is  void  only  for  the  excess.  Arm-  ^[  Com.  Dig.  Action  upon  Statute,  F. ; 

strong  v.  The  United  States,  1  Peters,  C.  C.  Dudley  v.  Mayhew,  3  Comstock,  9. 
U.   S.  p.  46;  Van  Deusen  v.   Hayward,  IV          **  2  Coke's  Inst.  74,  118;  Bacon's  Abr.  16  ; 

Wend.  67.  Clark  T.  Brown,  18  Wend.  213,  220 ;  Smith  v. 

f  Bank  of  Monroe  v.  Widner,   11  Paige,  Drew,  5  Mass.  514. 
529;  Humphrey  v.  Chamberlain,  1  Kern.  274.  ff  1  Kent  Com.  464. 

J  Com.  Dig.  Action  upon  the  Case,  A. 


REMEDIES    FOR  THE  VIOLATION   OF   STATUTES.  75 

performance  of  whatever  may  be  necessary  for  executing  its 
commands.*  So,  where  a  statute  authorized  a  sheriff  to  sell  the 
right  and  interest  of  a  pledger  on  execution  against  him,  but 
did  not  confer  any  authority  on  him  to  seize  or  take  into  his 
possession  the  property  in  the  hands  of  the  pledgee,  it  was  held 
that  he  had  it  ex  necessitate,  as  another  statutory  provision  de- 
clared that  no  personal  property  should  be  exposed  for  sale  by  a 
sheriff  unless  the  same  were  produced  at  the  time.f  Quamlo  lex 
aliquid  concedit,  conceded  videtur  et  id  per  quod  devenitur  ad  illud. 
Questions  often  arise  as  to  the  election  of  remedies  for  the 
violation  of  statutes.  Where  a  right  originally  exists  at  com- 
mon law,  and  a  statute  is  passed  giving  a  new  remedy  without 
any  negative,  express  or  implied,  upon  the  old  common  law, 
the  party  has  his  election  either  to  sue  at  common  law,  or  to 
proceed  upon  the  statute.  The  statutory  remedy  is  merely 
cumulative.  £  So  against  a  witness  who  neglects  to  attend  in 
obedience  to  a  subpoana,  the  injured  party  may  have  either  an 
action  on  the  case  for  damages,  or  an  action  on  the  statute  for 
the  penalty.  I  This  old  English  rule  has  been  repeatedly  recog- 
nized and  declared  in  this  country.  ^[  So,  the  statutory  remedy 
by  distress,  against  beasts  doing  damage,  does  not  take  away 
the  common-law  action  of  trespass.**  So,  giving  a  superadded 
penalty  for  the  eviction  or  continuance  of  a  nuisance  does  not 
prevent  the  common-law  right  of  the  public  to  have  it  indicted 
and  removed,  nor  does  it  prevent  its  being  abated  in  the  usual 
way  by  individuals.ft  So,  a  clause  in  a  railroad  act,  author- 
izing the  directors  to  exact  a  forfeiture  of  the  stock  and  previous 
payment,  as  a  penalty  for  non-payment  of  instalments,  does  not, 
before  any  forfeiture  has  been  declared,  impair  the  remedy  of 
the  directors  to  enforce  payment  by  action  at  common  law  on 
the  implied  promise.  The  statute  remedy  of  forfeiture  is 
affirmative,  and  contains  no  words  excluding  the  common-law 
relief:  in  such  case  it  is  well  settled  that  both  remedies 


*  Foliatnb's  Case,  5  Coke,  115.  **  Golden   v.  Eldred,  15  J.  R.   220  ;  see 

f  Stief  v.   Hart,   1   Corns.   20;   decided,  also,  Clark  v.  Brown,  18  Wend.  213,  220; 

however,  by  a  divided  court.     *  Stafford  v.  Ingersoll,  3  Hill,  39. 

\  Comyn's  Digest,  Action  on  Statute,  C.  f  f  Renwick  v.  Morris,  3  Hill,  621,   and 

j  Pearson  v.  Isles,  2  Douglas,  556.  s.  c.  in  error,  7  Hill,  575. 

\  Almy  v.  Harris,  5  J.  R.  175  ;  Smith  v.  tt  Northern    Railroad   Co.   v.  Miller,   10 

Drew,  5  Mass,  514.  Barb.  260  ;  Clark  v.  Brown,  18  Wend.  220; 


76  REMEDIES   FOR  THE  VIOLATION  OF    STATUTES. 

But,  on  the  other  hand,  where  by  a  statute  a  new  offence 
is  created,  and  a  penalty  is  given  for  it,  or  a  new  right  is  given 
and  specific  relief  given  for  the  violation  of  such  right,  the 
punishment  or  remedy  is  confined  to  that  given  by  the  statute.* 
"  Where  a  new  right,"  says  the  Supreme  Court  of  New  York, 
"  or  the  means  of  acquiring  it,  is  conferred,  and  an  adequate 
remedy  for  its  invasion  is  given  by  the  same  statute,  parties 
injured  are  confined  to  the  statutory  redress."  f  Sometimes, 
however,  doubts  will  arise  as  to  whetfter  the  statute  does  or 
does  not  intend  to  take  away  the  common-law  remedy ;  and 
the  answer  will  depend  on  the  subject-matter.  So,  where  the 
charter  of  a  turnpike  corporation  provided  that  any  person 
guilty  of  certain  injuries  to  the  road,  as  breaking  down  gates 
or  digging  up  earth,  should  forfeit  and  pay  a  fine  of  fifty  dol- 
lars, it  was  held  that  this  provision  was  not  intended  to  take 
away  any  common-law  remedies  for  such  injury  or  obstruction, 
upon  the  ground  that  the  penalty  fixed  by  the  charter  was,  in 
many  cases  that  might  occur,  wholly  inadequate  to  indemnify 
the  company.  J  Where  a  statute  does  not  vest  a  right  in  a 
person,  but  merely  prohibits  the  doing  of  some  act  under  a 
penalty,  in  such  a  case  the  party  violating  the  statute  is  liable 
to  the  penalty  only;  but  where  a  right  of  property  is  vested 
in  consequence  of  the  statute,  it  may  be  vindicated  by  the 
common-law  remedy  of  action,  unless  the  statute  expressly  con- 
fines the  remedy  to  the  penalty.  So  in  Massachusetts,  where  a 
party  was  sued  for  obstructing  the  passage  of  fish  up  a  river,  it 
was  objected  that  the  franchise  of  the  plaintiff  in  the  fishing 
was  created  by  a  statute,  and  that  as  the  same  statute  imposed 
a  penalty  for  the  infringement,  the  plaintiff's  remedy  was  con- 
fined to  the  penalty;  but  the  objection  was  considered  bad, 
and  it  was  held  that  the  plaintiff  was  at  liberty  to  sue  at  com- 

Colden  v.  Eldred,  15  J.  R.  220;  Troy  and  the  subscriber  is  not  personally  liable,  and 

Boston  Railroad  Co.  v.  Tibbitts,  18  Barbour,  the  remedy  is  limited  to  the  forfeiture.     Fort 

297.     As  to  the  remedies  for  non-payment  of  Miller  and  Fort  Edward  Plank  Road  Co.  v. 

stock,  it  would  seem  that  if  the  act  of  incor-  Payne,  17  Barb.  567,  and  cases  there  cited. 

poration,  or  any  public  statute,  declares  that  *  City  of  Boston  v.  Shaw,  1  Met.    130 ; 

the  subscriber  to  the  stock  shall  pay  the  calls  Crosby  v.  Bennett,  7  Met.  17. 

made  thereon,  or  if  he  actually  agree  to  do  f  Smith    v.    Lockvvood,    13    Barb.    209 ; 

so,  he  is  liable,  and  the  remedy  of  forfeiture  Dudley  v.  Mayhew,  3  Corns.  9. 

for  non-payment  is  merely  cumulative.     But  \  Salem  Turnpike  &  C.  B.  Co.  v.  Hayes, 

where  there  is  a  right  of  forfeiture  given,  and  6  Cushing,  458. 

no  duty  imposed  to  pay,  and  no  promise,  then 


REMEDIES  FOR  THE  VIOLATION  OF  STATUTES.  77 

mon  law  for  the  injury  done  to  his  franchise.*  Nor  is  the  com- 
mon-law right  to  maintain  an  action  in  respect  of  a  special 
damage  resulting  from  the  breach  of  a  public  duty,  whether 
such  duty  exists  at  common  law  or  is  created  by  statute,  taken 
away  by  reason  of  a  penalty  recoverable  by  a  common  informer 
being  annexed  as  a  punishment  for  the  non-performance  of  the 
public  duty.  So,  where  a  statute  f  makes  it  a  duty  of  a  ship- 
owner to  keep  on  board  his  vessel  a  proper  supply  of  medicines, 
and  imposes  a  penalty  recoverable  by  a  common  informer  as 
the  specific  punishment  for  the  breach  of  that  duty  as  to  the 
public,  sailors  sustaining  a  private  injury  from  the  breach  of 
the  statutable  duty,  are  entitled  to  maintain  an  action  to 
recover  damages.  ;£ 

But  if  the  performance  of  a  new  duty  created  by  act  of  Par- 
liament, is  enforced  by  a  penalty  recoverable  by  the  party  ag- 
grieved by  the  non-performance,  then  there  is  no  other  remedy 
than  that  given  by  the  act,  either  for  the  public  or  private 
wrong.  So  too,  if  there  is  no  private  damage ;  then  if  a  statute 
points  out  a  particular  mode  of  procedure,  it  must  be  pursued. 
So  it  has  been  decided  in  regard  to  the  recovery  of  a  highway 
rate  and  a  land  tax.[  It  is  to  be  observed  in  general,  that  the 
infraction  of  a  public  prohibitory  statute,  even  if  passed  chiefly 
for  the  protection  of  a  particular  class,  does  not  confer  any  in- 
dividual right  unless  the  party  alleging  himself  to  be  aggrieved, 
has  sustained  a  special  damage  peculiar  to  himself. *f  As  to 
criminal  legislation,  it  may  be  remarked,  that  where  a  statute 
prohibits  an  act  to  be  done  under  a  certain  penalty,  though  no 
mention  is  made  of  indictment,  the  party- offending  may  be  in- 
dicted and  fined  to  the  amount  of  the  penalty;  but  where  it  is 
merely  provided  that  if  any  person  do  a  certain  act  he  shall  for- 
feit a  sum  to  be  recovered  by  action  of  debt,  no  indictment  can 
be  supported.**  If  a  statute  enjoin  an  act  to  be  done,  without 
pointing  out  any  mode  of  punishment,  an  indictment  will  lie 

*  Smith  v.  Drew,  5  Mass.  514;  Almy  v.  Bridges,  1  B.  and  Ad.  847;  see  also,  Stevens 

Harris,  5  J.  R.  175.  v.  Jeacocke,  11  Q.  B.  731. 

f  7  and  8  Viet.  c.  112.  a.  18.  Tf  Butler  v.  Kent,  19  J.  R.  223 ;  Lansing 

\  Couch  v.  Steel,  3  Ellis  and  Blackburn,  v.  Smith,  8  Cowen,  146;  Smith  v.  Lockwood, 

Q.  B.  402 ;  Rowning  v.  Goodchild,  2  W.  Bl.  13  Barb.  209. 

906.  **  Chitty's  Criminal  Law,  i,  p.  162;  Cro. 

||  Underbill  v.  Ellicombe,  M'Clel.  and  Y.  Eliz.  635,  2  Inst.  131. 
450 ;  Doe  dem.  the  Bishop  of  Rochester  v. 


78  STATUTORY  FORFEITURES. 

for  disobeying  .the  injunction  of  the  Legislature.*  The  Revised 
Statutes  of  New  York,f  declare  in  conformity  with  these  rules 
of  the  common  law,  that  where  the  performance  of  an  act  is 
prohibited  by  any  statute,  and  no  penalty  for  the  violation  of 
such  statute  is  imposed  either  in  the  same  section  containing 
such  prohibition,  or  in  any  other  section  or  statute,  the  doing 
such  act  shall  be  deemed  a  misdemeanor. 

Statutory  Forfeitures. — Property  is  often  forfeited  by  illegal 
acts.  This  sometimes  results  from  the  rules  of  the  common  law, 
and  sometimes  from  the  provisions  of  statutes.  But  there  is  a 
marked  difference  in  the  two  cases.  A  forfeiture  at  common 
law  does  not  operate  to  change  the  property  until  some  legal 
step  has  been  taken  by  the  Government  for  the  assertion  of  its 
rights ;  but  where  a  forfeiture  is  given  by  statute,  the  rules  of 
the  common  law  are  dispensed  with,  and  the  thing  forfeited 
may  either  vest  immediately  or  upon  the  performance  of  some 
future  act,  according  to  the  will  of  the  Legislature;  £  and  if  no 
future  time  or  future  act  is  pointed  out,  then  where,  by  the 
words  of  a  statute,  a  forfeiture  is  attached  to  the  commission  of 
an  offence,  its  immediate  operation  is  to  divest  wholly  the  title 
of  the  owner,  so  as  to  deprive  him  of  the  right  of  maintaining 
any  action  or  defence  to  which,  as  owner,  he  would  otherwise 
be  entitled.  So,  where  the  English  navigation  act  had  been 
violated,  it  was  held  that  the  property  was  forfeited  though 
there  had  been  no  previous  condemnation.!  So,  where  an  act 
of  the  Congress  of  the  United  States,  declaring  that  whenever 
certain  articles  "  should  be  imported  into  the  United  States  after 
the  20th  day  of  May  next,  all  such  articles  shall  be  forfeited  to 
the  U.  S. ; "  it  was  held  that  an  absolute  and  instantaneous  for- 
feiture was  created  by  the  mere  act  of  importation,  that  no 
seizure  \vas  necessary  to  vest  the  title  in  the  Government,  and 
that  even  a  lona  fide  purchaser  acquired  no  title.^f  So,  again, 
where  a  statute  in  New  York,  in  relation  to  lotteries,  provided 
that  "  all  property  offered  for  sale,  distribution,  or  disposition 

*  Rexv.  Davis,  Say.  163.  ^  U.  States  v.  1,960  bags  of  coffee,  8 

f  1'nrtiv.  chap,  i,  title  7,  vol.  ii,  p.  696.  Cranch,  398,  overruling  Mr.  Justice  Story's 

\  Bennett  v.  Am.  Art.  Union,  5  Sandford,  decision  in  the  Mars,  1  Gallison,  192  ;  Fon- 

614.  6H6;  U.  S  v.  Grundy,  3  Cranch,  337.  taine  v.  Phoenix  Ins.  Co.  11  J.  R.  293;  Ken- 

||  Wilkins  v.  Despard,  5  T.  R.  112  ;  Rob-  nedy  v.  Strong,  14  J.  R.  128. 

ertsv.  Wetherall,  Salk.  223  ;  s.  c.,  12  Mod.  92. 


SEVERAL  PENALTIES.  79 

against  the  provisions  of  law,  shall  be  forfeited  to  the  people  of 
the  State,"  it  was  held  that  the  mere  offer  for  sale  worked  an 
immediate  change  and  transfer  of  the  title.* 

Several  Penalties. — Where  a  penalty  is  imposed  upon  the 
commission  of  an  act,  and  the  act  is  committed  by  several 
persons,  the  question  sometimes  arises  whether  only  one  penalty 
can  be  recovered  against  all,  or  whether  the  whole  amount  of 
the  statutory  forfeiture  can  be  demanded  against  each  of  the 
offenders.  And  the  rule  is,  that  where  the  offence  is  in  its 
nature  single,  and  cannot  be  severed,  there  the  penalty  shall  be 
single ;  because,  though  several  persons  join  in  committing  it, 
it  still  constitutes  but  one  offence.  So,  if  a  distress  is  wrongfully 
impounded,  though  several  may  co-operate,  it  is  but  one  act  of 
impounding.  So,  under  the  English  game  laws,  killing  a  hare 
is  but  one  offence,  whether  one  or  twenty  kill  it.  So  again,  if 
partridges  are  netted  by  night,  though  two,  three,  or  more  may 
draw  the  net,  still  it  is  but  one  offence ;  and  in  these  cases  there 
can  be  but  one  penalty  against  all  the  parties  found  guilty.f 
So  too,  in  this  country,  with  regard  to  the  removal  of  property 
liable  to  rent  from  off  demised  premises,  before  the  remedy  of 
distress  for  rent  was  abolished,  it  has  been  held  to  be  but  one 
act,  and  to  subject  all  parties  concerned  to  but  one  penalty .J 

But  on  the  other  hand,  where  the  statute  relates  to  an 
offence  in  its  nature  several,  as,  for  instance,  to  the  resistance  of 
process,  the  acts  of  each  are  to  be  severally  regarded,  and  the 
penalty  to  be  imposed  on  each.  One  may  resist,  another  mo- 
lest, another  run  away  with  goods ;  one  may  break  the  offend- 
er's arm,  another  put  out  his  eye ;  all  these  are  distinct  acts, 
and  the  offence  of  each  is  complete  in  its  nature.  Therefore, 
each  person  is  liable  to  a  penalty  for  his  own  separate  offence.  | 

Good  faith  no  excuse  for  violation  of  /Statutes. — We  have  al- 
ready had  occasion  to  notice  the  rule,  that  ignorance  of  the  law 
cannot  be  set  up  in  defence.  All  are  bound  to  know  the  law ; 
and  this  holds  good  as  well  in  regard  to  common  as  to  statute 

*  Bennett  v.  Am.  Art  Union,  5  Sandf.  Palmer  v.  Conly,  4  Denio,  375 ;  Conley  v. 

614.  Palmer,  2  Corns.  182. 

f  Partridge  v.  Naylor,  Cro.  Eliz.  480;  ||  Rex  v.  Clark,  Cowp.  610;  Palmer  v. 

8.  c.  F.  Moore,  453.  Conly,  4  Denio,.  375 ;  Cunley  v.  Palmer,  2 

$  Warren   v.    Doolittle,    5    Cowen,    678;  Corns.  182. 


80  GOOD   FAITH  NO   EXCUSE. 

law,  as  well  in  regard  to  criminal  as  to  civil  cases.  In  regard 
even  to  penal  laws,  it  is  strictly  true  that  ignorance  is  no  excuse 
for  the  violation  of  a  statute.*  So  in  regard  to  frequent  at- 
tempts which  have  been  made  to  exonerate  individuals  charged 
with  disobedience  to  penal  laws,  on  the  ground  of  good  faith  or 
error  of  judgment ;  it  has  been  held  that  no  excuse  of  this  kind 
will  avail  against  the  peremptory  words  of  a  statute  imposing 
a  penalty.  If  the  prohibited  act  has  been  done,  the  penalty 
must  be  paid.  So  in  England,  in  debt,  for  a  penalty  under  the 
game  laws,  for  shooting  without  license,  it  was  urged  that  the 
defendant  acted  in  good  faith,  and  relied  on  a  license  which 
proved  insufficient ;  but  it  was  held  that  acting  bona  fide  was 
no  excuse,  f  So,  where  an  act  directed  town  supervisors  to 
raise  certain  sums  of  money  for  the  erection  of  public  buildings, 
and  declared  that  if  they  neglected  or  refused,  each  supervisor 
should  forfeit  the  sum  of  $250,  it  was  argued  that  the  super- 
visors had  a  discretion,  and  that  it  must  be  shown  that  they 
abused  this  discretion  or  exercised  it  corruptly ;  but  the  act  was 
declared  to  be  imperative,  and  the  supervisors  to  be  liable.  £ 
So  where  supervisors  were  by  law  directed  to  audit  and  allow 
the  accounts  of  certain  judicial  officers,  and  in  case  of  neglect  or 
refusal  were  subjected  to  a  penalty  of  $250 ;  a  mayor  of  a  city, 
acting  as  supervisor,  refused  to  audit  an  account  of  this  class ; 
and,  in  his  defence,  it  was  urged  that  he  was  not  liable  unless 
his  intention  in  not  auditing  the  account  was  corrupt ;  and  that, 
in  fact,  he  honestly  believed  the  officers,  whose  account  had 
been  offered  for  audit,  had  been  unconstitutionally  appointed ; 
but  it  was  held  to  be  no  excuse.  "  The  offence,"  said  Mr.  Sena- 
tor Lott,  in  delivering  the  judgment  of  the  Court  of  Errors, 
"  consists  in  the  refusal  to  perform  the  duty  required  by  law, 
and  not  in  the  intent  or  motive  by  which  the  supervisors  are 
actuated."  |  So,  a  justice  of  the  peace  was  held  liable  for  a 
misdemeanor,  as  for  a  wilful  neglect  of  duty,  in  refusing  to  take 

*  Smith  v.  Brown,  1  Wend.  231 ;  Caswell  officers  in  question  had  been  appointed,  had 

v.  Allen,  7  J.  R.  63.  been  settled  by  the  court  of  last  resort  (Pur- 

f  Calcraft  v.  Gibbs,  5  T.  R.-19.  dy  v.  The  People,  4  Hill,  384),  and  that  this 

±  Caswell  v.  Allen,  *7  J.  R.  63.  was  a  conclusive  defence;  but  Mr.  Senator 

|  Morris  v.  The  People.  3  Denio,  pp.  381  Lott  held  that  neither  the  supervisors  nor  the 

and  402.    It  was  contended  that  the  unconsti-  court  in  that  suit,  to  which  the  officers  were 

tutionality  of  the  act  under  which  the  judicial  not  parties,  could  determine  the  point. 


RELIEF  AGAINST   PUBLIC   OFFICERS.  81 

an  affidavit  in  a  cause  before  him,  though  he  acted  in  good  faith 
in  his  refusal.  The  court  said,  "  The  justice  knew  what  was 
asked  of  him,  and  he  knew  what  he  refused.  There  was 
nothing  like  surprise,  inadvertence,  or  even  apprehension  on  his 
part.  He  refused  to  administer  the  oath,  and  he  intended  to 
refuse.  This  is  a  wilful  violation  of  duty."  * 

Statutes  with  Hegard  to  Infants. — Where  a  statute  obliges 
an  infant  to  indemnify  the  city,  town,  or  county  against  the  ex- 
penses of  supporting  his  illegitimate  child,  and  makes  it  neces- 
sary for  him  to  enter  into  a  bond  with  sureties  for  the  purpose, 
as  the  only  means  by  which  he  can  obtain  a  discharge  from 
arrest,  that  provision,  without  further  words,  gives  the  infant  a 
legal  capacity  to  make  a  binding  obligation,  and  his  infancy  is 
no  defence  to  an  action  on  the  bond.f  "  Whenever,"  says  Mr. 
Justice  Story,  "  any  disability  created  by  the  common  law  is- 
removed  by  the  enactment  of  a  statute,  the  competency  of  the 
infant  to  do  all  acts  within  the  purview  of  such  statute,  is  as 
complete  as  that  of  a  person  of  full  age.  And  whenever  a  stat- 
ute has  authorized  a  contract  for  the  public  service,  which,  from 
its  nature  and  objects,  is  manifestly  intended  to  be  performed 
by  infants,  such  a  contract  must  in  point  of  law  be  deemed  to 
be  for  their  benefit  and  for  the  public  benefit,  so  that  when 
bona  fide  made  it  is  neither  void  nor  voidable,  but  is  strictly 
obligatory  upon  them."  J 

Relief  against  Acts  of  Public  Officers  created  by  Statute.— 
Questions  often  arise  as  to  the  remedy  against  persons  exercising 
a  statutory  authority  for  erroneous  exercise  of  power,  as,  for  in- 
stance, in  regard  to  the  assessment  and  collection  of  taxes ;  and  the 
general  principle  seems  to  be  that  where  the  officer  acquires  juris- 
diction, then  an  error  of  judgment  does  not  render  him  liable  to 
suit ;  but  if  he  undertakes  to  act  in  cases  over  which  he  has  no 
jurisdiction,  he  commits  a  trespass,  and  an  action  lies.  So,  where  a 
statute  authorized  the  trustees  of  a  school  district  to  vote  and 
levy  a  tax  "  upon  the  resident  inhabitants  of  the  district,"  and 
a  warrant  was  issued  to  collect  the  tax  of  parties  who  were  act- 
ually non-residents,  it  was  held  that  no  jurisdiction  had  been 

*  People  v.  Brooks,  1  Denio,  457.  \  United  States  v.  Bainbridge,  1  Mason, 

f  The  People  v.   Moores,  4  Denio,  518;     71. 
see,  alao,  Winslow  v.  Anderson,  4  Mass.  376. 
6 


82  BELIEF   AGAINST  PUBLIC   OFFICERS. 

acquired,  and  that  an  action  would  lie  against  the  parties  acting 
under  the  tax- warrant.*  So  again,  on  the  other  hand,  where 
an  action  was  brought  against  a  tax  collector  for  levying  a  tax 
on  a  theater  which  had  been  erroneously  assessed  as  a  dwelling- 
house,  it  was  held  that  the  assessors  were  clothed  with  power 
to  assess  the  property  according  to  the  class  to  which,  in  their 
judgment,  it  belonged ;  that  they  had  jurisdiction  of  the  subject, 
and  that  though  they  might  have  erred,  still  no  action  would 
lie  against  parties  acting  under  their  authority,  f  This  distinc- 
tion is  in  analogy  to  the  rule  founded  on  public  policy,  which 
has  been  long  and  well  settled,  that  a  judicial  officer  is  pro- 
tected whenever  he  has  jurisdiction  and  a  case  is  presented  call- 
ing for  his  decision,  no  matter  how  great  the  error  of  judgment 
which  he  commits,  no  matter  how  gross  the  malice  with  which 
he  is  charged. J 

Indeed,  even  in  cases  where  public  officers  exceed  their 
authority,  there  is  manifested  a  disposition  by  the  courts  not 
to  interfere,  and  where  their  discretionary  authority  is  appealed 
to,  they  often  refuse.  So  where  writs  of  certiorari  have  been 
applied  for  to  bring  up  the  proceedings  of  town  and  county 
officers  in  regard  to  the  assessment  or  imposition  of  taxes,  the 
courts  have  declined  to  grant  them.  The  writ  of  certiorari,  at 
common  law,  lies  to  officers  exercising  judicial  powers,  and  to 
bring  up  proceedings  of  that  character;  but  the  allowance  of 
the  writ  is  discretionary,  and  on  grounds  of  public  policy  and 
convenience,  in  cases  of  this  kind  it  is  generally  denied.  1  So 
too,  in  this  country,  an  indisposition  is  manifested  in  regard  to 
officers  clothed  with  statutory  powers  for  the  prosecution  of 
great  public  works,  to  interfere  with  them  by  the  preventive 
power  of  injunction,  unless  a  very  strong  case  for  interference 
is  made  out.  Thus,  where  a  canal  company  were  authorized  to 

*  Suydam  v.  Keys,  13  J.  R.  444.  lin,  8  Cowen,  178;  Horton  v.  Auchmoody,  7 

f  Henderson  v.  Brown,  1  Caines,  92.  See,  Wend.  200;  Easton  v.  Calendar,  11  Wend. 

also,  Prosser  v.  Secor,  5  Barb.  607 ;  and  Vail  90 ;   Harman  v.   Brotherson,   1   Denio,   537 ; 

v.  Owen,  19  Barb.  22,  which  leave  the  ques-  Weaver  v.  Devendorf,  3  Denio,  117,  and  cases 

tion  as  to  the  power  of  assessors  in  New  York,  cited ;  Stanton  v.  Schell,   3  Sandf.  8.  C.  R. 

in  doubt.     See,  also,  as  to  power  of  assessors,  323;  Landt  v.  Hilts,  19  Barb.  283. 

Weaver  v.  Devendorf,  3  Denio,  117.  |  The  People  v.  Supervisors  of  Alleghany, 

J  Mills  v.  Collett,  6  Bing.  85;  Brittain  v.  15  Wend.  198;  The  People  v.  Supervisors  of 

Kinnaird,   1   Brod.   <fe   Bing.  432;   Dicas  v.  Queens,   1   Hill,  195;  Weaver  v.  Devendorf, 

Lord  Brougham,  6  C.  <fc  P.  249;  Doswell  v.  3  Denio,  117. 

Iinpey,  1  B.  <fe  C.  163  ;  Cunningham  v.  Buck- 


LIMITATION  OF  ACTIONS.  83 

make  and  maintain  a  canal  of  "  suitable "  width,  and  they 
undertook  to  enlarge  it,  and  a  mill-owner  applied  for  an  injunc- 
tion against  the  making  of  a  dam,  it  was  refused.* 

No  Relief  in  Equity  against  a  Statute. — While  speaking  of 
the  remedies  for  the  violation  of  a  statute,  we  may  briefly  refer 
to  the  relief  which  has  been  sought  in  equity  from  the  opera- 
tion of  the  positive  terms  of  a  statute.  The  limits  of  this  work 
will  not  permit  me  to  define  the  boundaries  nor  describe  the 
attributes  of  the  two  great  branches  of  equity  and  common 
law.  But  it  is  familiar  learning,  that  from  a  very  early  period 
in  English  jurisprudence,  the  courts  of  equity,  proceeding 
according  to  the  course  of  the  civil  law,  undertook  to  enlarge 
the  remedies  and  modify  the  rigor  of  the  common-law  tribunals. 
Seeking  to  act  on  this  idea,  attempts  have  been  repeatedly 
made  to  obtain  the  protection  which  courts  of  chancery  give  in 
cases  of  attempted  fraud,  and  to  induce  those  tribunals  to 
relieve  against  express  statutory  provisions,  upon  an  allegation 
that  they  were  inequitably  or  immorally  set  up.  But  these 
efforts  have  been  generally  discountenanced ;  and  the  rule  is, 
that  equity  will  give  no  relief  against  a  statute.  "  There  can 
be  no  relief  in  equity,"  said  Lord  Eldon,  "  if  the  act  has  posi- 
tively said  so.  On  the  other  hand,  if  that  is  not  expressly 
declared,  nor  the  relief  clearly  excluded  by  the  policy  of  the 
act,  the  equitable  jurisdiction  upon  fraud  exists."  f 

Limitation  of  Actions  on  Statutes.— We  have  thus  far 
spoken  of  the  various  remedies  for  the  infringement  or  violation 
of  statutory  rights  and  duties.  We  have  now  to  consider  a 
restriction  upon  these  remedies,  consisting  in  the  limitation  of 
the  time  within  which  actions  of  this  class  must  be  brought. 
At  common  law — and  it  is  among  those  of  its  attributes  which 
considerably  deduct  from  the  extravagant  demands  upon  our 
respect  and  admiration  that  its  devotees  have  made — at  com- 
mon law,  it  would  appear  that  lapse  of  time  in  no  case  formed 
any  bar  to  the  prosecution  of  a  right.  A  rule  so  fatal  as  this 
to  the  peace  and  repose  of  society  could  not  long  withstand  the 
progress  of  civilization.  But  it  seems  that  the  first  statutory 

*  Bruce  v.  President  of  Del.  and  Hudson          f  Mestader  v..  Gillespie,  11  Ves.  621,  627. 
Canal  Co.  19  Barb.  371, 


84  LIMITATION  OF  ACTIONS. 

limitations  of  actions  date  no  farther  back  than  the  period  of 
Henry  VIII.*  In  the  reign  of  that  monarch,  a  statute  of  this 
description  was  passed,  but  it  was  only  of  limited  application ; 
and  it  was  not  until  the  reign  of  James  I  f  that  a  general  act 
of  this  nature  was  introduced  into  the  legislation  of  England. 
The  details  of  this  statute  have  been  since  materially  modified ; 
but  it  asserted  the  principle  of  limitation  in  its  broadest  terms, 
and  has  formed  the  basis  of  the  analogous  legislation  of  this 
country.  The  rule,  as  now  universally  adopted,  applies  as  well 
to  actions  founded  on  statutes  as  to  all  other  suits.  The  period 
of  limitation,  however,  depends  on  the  laws  of  each  jurisdiction, 
and  into  these  questions  of  local  enactment  I  do  not  propose  to 
enter.  I  -shall  only  briefly  refer  to  some  questions  of  more 
immediate  interest  connected  with  this  part  of  my  subject. 

The  old  English  maxim  is,  nullum  tempus  occurrit  regi  j  and 
the  rule  founded  upon  it  is,  that  the  king  is  not  bound  by  any 
statute  of  limitations,  unless  there  be  an  express  provision  to 
that  effect.  This  rule  also  applies  to  the  Government  of  the 
United  States,J  which  is  in  nowise  affected  by  the  statutes  of 
limitation  of  the  various  States  |  (though  in  consulting  the 
State  laws  on  the  subject,  the  federal  tribunals  accept  the  con- 
struction which  the  State  courts  have  put  on  them)  ^[ ;  and  also 
to  the  States  themselves,  except  where  the  doctrine  has  been 
abrogated  by  statute.** 

This  rule  has  been  defended  on  the  assertion  of  the  policy  of 
preserving  the  public  rights,  resources  and  property  from 
injury  and  loss  by  the  negligence  of  public  officers.  But  the 
doctrine  rather  appears  traceable  to  the  old  feudal  deference  for 
power  and  prerogative ;  and  if  statutes  of  limitations  are  to  be 
considered  as  statutes  of  repose,  and  as  such  favorably  regarded, 
there  seems  little  reason  why  the  Government  should  be  ex- 
cepted  from  their  operation,  or  why  a  power  so  abundantly 
able  to  protect  itselfj  should  be  armed  with  the  formidable 
weapon  of  a  perpetual  claim. 

*  Dwarris,  vol.  ii,  p.  805   and  815;    32          ^[  Harpendingv.  Dutch  Church,  16  Peters, 

Hen.  VIII,  c.  2;  4  Bl.  Com.  431.  455. 

f  Dwarris,  vol.  ii,  p.  831 ;  21  Jac.  I,  c.  16.  **  Inhabitants  of  Stonghton   v.  Baker,  4 

\  United  States  v.  Hoar,  2  Mason,  311.  Mass.  522;  Weatherhead  v.  Bledsce,  2  Over- 

f  Swearingen  v.  United  States,  11  Gill  &  ton  (Tenn.)  R.  352;  People  v.  Gilbert,  18  J. 

J.  873.  R.  227. 


LIMITATION  OF  ACTIONS.  85 

The  justness  of  these  observations  is  confirmed  by  the  prac- 
tice of  some  of  the  States,  which,  with  a  wise  and  liberal  policy, 
have  consented  to  put  the  Government,  in  this  respect,  on  an 
equality  with  the  citizen.  So,  the  statutes  of  New  York  have 
limited  the  rights  of  the  people  of  that  State,  as  well  in  regard 
to  penalties  and  forfeitures  as  with  regard  to  claims  for  real 
estate;  and  in  regard  to  actions  other  than  for  the  recovery  of 
real  property,  have  declared  generally  that  the  limitations  pre- 
scribed by  the  statute  "  shall  apply  to  actions  brought  in  the 
name  of  the  people  of  the  State,  or  for  their  benefit,  in  the  same 
manner  as  to  actions  by  private  parties."  * 

The  statutes  of  the  State  of  New  York  were  revised  in 
1830.  At  that  time,  the  period  of  limitation  barring  suits  for 
land  by  the  State,  was  forty  years ;  but  the  re  visors  reduced  it 
to  twenty  years.  This,  however,  has  been  held  to  have  no  retro- 
active effect  where  the  statute  began  to  run  under  the  former  law, 
although  twenty  years  have  elapsed  since  1830;  as  the  Revised 
Statutes  declared  that  its  provisions  in  this  respect  should  not 
apply  to  any  actions  commenced,  nor  to  any  cases  where  the 
right  of  action  shall  have  accrued  or  the  right  of  entry  shall 
exist,  before  the  time  it  took  effect,  f 

By  the  New  York  Code  of  Procedure,  §  92,  it  is  provided 
that  an  action  upon  a  statute  for  a  penalty  or  forfeiture,  where 
the  action  is  given  to  the  party  aggrieved,  or  to  such  party  and 
the  people  of  this  State,  must  be  brought  within  three  years, 
except  where  the  statute  imposing  it  prescribes  a  different  limi- 
tation. J  Under  the  analogous  provision  in  the  Revised  Statutes  || 
of  the  same  State,  it  was  held  that  a  suit  against  a  stockholder 
of  a  corporation,  to  charge  him  individually  with  a  debt  con- 
tracted by  it  pursuant  to  a  provision  in  the  act  of  incorporation, 

*  Code  of  Procedure,  part  ii,  title  2,  §§  75,  Revisers'  note ;    Wilcox  qui  tarn  v.  Fitch,  20 

96,  98.  Johnson  R.  472 ;  Freeland  v.  M'Cullough,    1 

f  2  R.    S.   300,   §  45 ;  Champlain  &  St.  Demo,  414. 

Lawrence  Railroad  Co.  v.  Valentine,  19  Barb.  |  "  All  actions  upon  any  statute  made  or 

484,  and  cases  there  cited.  to  be  made  fW  any  forfeiture  or  cause,  the 

\  This  provision  as  to  "such  party  and  benefit  and  suit  whereof  is  limited  to  the 

the  people,"  relates  to  qui  tarn  actions  brought  party  aggrieved,  or  to  such  party  and  the 

by  an  informer,  and  was  first  introduced  into  people  of  this   State,   shall   be   commenced 

the  statutes  of  New  York  at  the  time  of  the  within  three  years  after  the  offence  commit  - 

revision  of  1830.     Before  that,  it  was  held  ted  or  the  cause  of  action  accrued,  and  not 

that  there  was  no  statute  of  limitation  to  ac-  after."     2  R.   S.  298,  §  31,  Part  iii,  c.  iv. 

tions  of  this  class.     2  R.  S.  Part  iii,  c.  iv,  Title  2,  Art.  3. 
Title  2,  Article  3,  §  31,  voL  ii,  p.  298,  and 


86  WAIVER  OF  STATUTES. 

is  not  within  the  section ;  and  it  was  intimated,  if  not  decided, 
that  this  short  statute  of  limitation  is  intended  only  to  embrace 
penalties  and  forfeitures  properly  so  called,  and  other  causes  of 
action  penal  in  their  nature,  and  where  both  the  cause  of  action 
and  the  remedy  are  given  by  statute,  but  does  not  extend  to 
cases  where  the  action  is  partly  given  by  common  law  and 
partly  by  statute.* 

We  may  here  take  notice  of  the  fact  that  statutes  of  limita- 
tions belong  to  a  class  of  legislative  enactments,  embracing  the 
laws  passed  for  the  prevention  of  usury,  and  some  others,  on 
which  the  judiciary  have  generally  looked  with  disfavor. 
Where  they  are  regularly  insisted  upon,  of  course  full  effect  is 
given  to  their  provisions ;  but  when  it  becomes  necessary,  as  in 
case  of  laches,  to  apply  to  the  court  for  leave  to  set  them  up, 
permission  has  often  been  refused,  on  the  ground  that  they  are 
statutes  of  which  it  is  inequitable,  if  not  immoral,  to  seek  the 
protection.  We  shall  have  to  consider  this  subject  again , 
when  we  come  to  speak  of  the  boundaries  of  legislative  and 
judicial  power ;  but  I  may  here  express  the  opinion,  that,  how- 
ever desirous  an  honest  and  intelligent  judiciary  must  ever  be 
to  repress  all  attempts  at  fraud,  and  to  use  their  powers  vigor- 
ously for  that  purpose,  still,  they  should  ever  remember,  that 
they  hold  in  our  system  a  position  subordinate  to  the  Legisla- 
ture; that  their  duty  is  to  give  full  effect  to  the  legislative 
will ;  and  that  any  effort  by  them  to  throw  discredit  on  statu- 
tory provisions  as  unjust  or  inexpedient,  is  but  to  arrogate  to 
themselves  a  censorship  over  the  law-making  power,  which  our 
Constitutions  have  nowhere  intrusted  to  them.  All  laws 
emanate  from  the  same  supreme  power ;  and  while  they  remain 
on  the  statute  book,  all  laws  are  entitled  to  equal  respect  and 
obedience. 

Waiver  of  Statutory  Provisions. — It  often  becomes  an  in- 
teresting question  how  far  a  statute  can  be  overreached  by 
private  compact  or  stipulation ;  how  far  its  requisitions  may  be 
waived  by  private  consent,  express  or  implied.  The  general 
rule  is,  that  no  contract  or  agreement  can  modify  a  law  :  jus 

*  Corning  v.   M'Cullough,    1    Corns.    47.     overruling  Van  Hook  v.  Whitlcck,  2  Edw.  304 ; 
This  case  must,  I  suppose,  be  considered  as    s.  c.  7  Paige,  373 ;  s.  c.  again,  26  Wend.  43. 


WAIVER  OF  STATUTES.  87 

publicum  privatorum  pactis  mutari  non  potest*  Privatorum 
conventio  yuri  publico  non  derogat.\  So  it  is  well  settled  that 
not  even  the  most  formal  and  solemn  consent  can  give  jurisdic- 
tion to  a  court  not  authorized  to  take  it.  And  whenever  the 
objection  is  raised,  although  it  may  be  a  breach  of  faith  and 
good  morals  to  insist  upon  it,  still  it  will  be  fatal.  J 

To  this  rule,  however,  there  is  a  large  class  of  exceptions 
expressed  by  the  maxim,  Modus  et  conventio  vincunt  legem. 
These  are  cases  where  the  party  is  held  at  liberty  to  waive 
statutory  provisions,  which,  if  insisted  on,  would  enure  to  his 
benefit ;  and  generally  it  is  true  that  where  no  principle  of 
public  policy  is  violated,  parties  are  at  liberty  to  forego  the 
protection  of  the  law.  The  maxim  here  applies  as  to  private 
acts — consensus  tollit  errorem.  So,  in  Massachusetts,  as  to  the 
statutory  requisition  in  actions  against  absent  defendants,  of  a 
continuance  of  suit  from  term  to  term,  till  notice  is  given  as 
the  court  may  order ;  but  to  have  this  effect,  however,  jurisdic- 
tion must  first  have  been  obtained.  |  So,  in  general  terms,  it 
has  been  said  in  New  York,  "  A  party  may  always  waive  a 
right  in  his  favor,  created  by  statute,  the  same  as  any  other."  ^f 
And  the  principle  was  applied  in  regard  to  a  statute  requiring 
railway  corporations  to  fence  in  their  tract ;  it  being  held  that 
an  adjacent  landowner  might  waive  his  right  resulting  from 
the  statute,  as  it  was  passed  for  his  benefit  and  protection.  So, 
on  the  same  principle,  if  statutory  requisitions  in  regard  to 
process  are  disregarded,  which  would  render  all  subsequent 
proceedings  fatally  defective ;  still,  if  the  party  waive  the  ob- 
jection, by  appearing  and  contesting  the  suit  on  the  merits,  a 
valid  judgment  may  be  rendered.**  But  the  waiver  can  only 
be  made  by  the  party  in  interest.  So,  a  mere  occupant  of 
lands  sold  for  taxes  cannot  waive  the  provisions  of  law  in- 
tended for  the  benefit  of  the  owner.ff  The  right  of  waiver 
is  subject,  as  I  have  said,  to  the  general  control  of  public 

*  L.  38,  ff.  de  Pact. ;  see  also,  1.  20,  ff.  de  ||  Morrisor  v.  Underwood,  6  Gushing,  52. 

Religiosis.  \  Tombs  v.  Rochester  and  Syracuse  R.  Co. 

f  L.  45,  §  1,  ff.  de  Reg.  Jur. ;  Domat.  Liv.  18  Barb.  583  ;  see  also  Buel  v.   Trustees  of 

Prel.  tit.  i,  §  2.  Lockport.  3  Corns.  197. 

\  Coffin  v.  Tracy,   3    Caines'   Rep.    1 29  ;  **  Seymour  v.  Judd,  2  Corns.  464. 

Davis  v.  Packard,  7  Peters,  276  ;  Dudley  v.  \\  Jackson  v.  Esty,  7  Wend.  148 
Mayhew,  3  Coins.  9 ;  Oakley  v.  Aspinwall,  3 
Corns.  548 ;  Low  v.  Rice,  8  J.  R,  409. 


88  PLEADING. 

policy ;  whenever  the  object  of  the  statute  is  to  promote  great 
public  interests,  liberty,  or  morals,  it  cannot  be  defeated  by 
any  private  stipulation.  So,  where  the  directors  of  a  corpora- 
tion were  prohibited  from  being  concerned,  directly  or  in- 
directly, in  any  contract  on  the  road  of  the  corporation,  it  was 
held  that  a  contract  made  in  violation  of  this  provision  was 
void;  and  it  was  intimated  that  neither  the  directors  nor 
stockholders  could  waive  the  prohibition.* 

The  general  rule  holds  good,  as  well  in  regard  to  Constitu- 
tions as  to  statutes.  A  party  may  waive  a  constitutional  as 
well  as  a  statutory  provision  made  for  his  benefit,  (a)  So  it 
has  been  repeatedly  decided  that  a  party  may  waive  the  right 
to  a  trial  by  jury,  although  that  mode  of  proceeding  be  guar- 
anteed to  him  by  the  Constitution.f  So,  if  a  private  road  be 
laid  out  in  an  unconstitutional  manner,  if  the  owner  consent, 
the  proceeding  will  be  held  valid.  J  It  is  on  this  same  doc- 
trine of  waiver  that  it  has  been  frequently  held,  that  the  acts 
of  a  public  officer  exceeding  his  legal  authority,  may  be 
adopted  by  the  party  for  whose  benefit  the  illegal  act  is  done. 
So,  where  a  sheriff  had  arrested  a  defendant  on  a  ca.  sa.,  and 
discharged  the  debtor  on  receiving  his  promissory  note ;  though 
the  act  of  the  sheriff  was  illegal,  and  the  note  void  in  his  hands, 
it  was  held  that  the  plaintiff  might  affirm  the  sheriff's  act,  and 
claim  the  note.  J 

Pleading  in  Actions  founded  on  /Statutes. — The  heads  of 

*  Barton  v.  Port  Jackson  and  Union  Falla  7  Howard  Pr.  R.  41 ;  Embury  v.  Conner,  3 

Plank-road  Co.  11  Barb.  397.  Corns.  611,  518. 

f  Lee  v.  Tillotson,  24  "Wend.  337 ;  The  ||  Armstrong  v.  Garrow,  6  Cowen,  465 ; 

People  v.  Murray,  5  Hill,  468.  Pilkington  v.  Green,  2  B.  &  P.  151 ;  Farmers' 

\  Baker  v.  Braman,  6  Hill,  47 ;  see  also  Loan  and  Trust  Co.  v.  Walworth,  1  Corns. 

Keater  v.  Ulster  and  Delaware  Plank-road  Co.  433. 

(a)  A  party  may  waive  his  right  to  object  to  the  constitutionality  of  a  statute, 
e.  g.  where  he  takes  advantage  of  a  statutory  remedy,  in  preference  to  the  common- 
law  remedy,  he  cannot  complain  of  the  incidents  of  that  remedy.  Kolston  v. 
Oursler,  12  Ohio  (N.  8.),  105 ;  and  see  Vose  v.  Cockroft,  44  N.  Y.  415 ;  Phyfe  v. 
Einer,  45  N.  Y.  102.  And  waiver  is  to  be  presumed  on  part  of  those  who  do  not 
object.  Hingham  &c.  Co.  v.  Norfolk,  6  Allen,  353.  A  corporation  cannot  object  to 
constitutionality  of  statute,  as  to  ex  parte  proceedings  against  such  corporation 
passed  before  its  incorporation.  Philadelphia  v.  Commonwealth,  52  Penn.  St.  451. 
Parties  who  procure  enactment  of,  ratify,  acquiesce  in,  or  receive  benefits  under,  a 
local  statute,  waive  objection  to  its  constitutionality.  Ferguson  v.  Landram,  5  Bush. 
(Ky.)  230. 


PLEADING.  89 

pleading  and  evidence,  in  regard  to  statutes,  are  so  fully  dis- 
cussed in  various  familiar  treatises,  that  I  shall  here  only  refer 
to  them,  and  give  a  brief  outline  of  the  general  rules  relating 
to  this  part  of  my  subject.* 

At  common  law,  under  the  technical  system  of  forms  of 
action,  the  remedy  in  civil  suits  brought  upon  statutes  was 
by  assumpsit,  debt,  or  case.f  Although  a  statute  is,  at  com- 
mon law,  in  some  points  of  view  considered  and  treated  as  a 
specialty,  yet  assumpsit  would  lie  for  money  accruing  to  the 
plaintiff  under  its  provisions,  if  he  were  not,  by  the  statute 
itself,  restricted  to  any  particular  remedy.  J  Debt  was  also,  at 
common  law,  frequently  the  proper  remedy  on  statutes,  in 
actions  brought  either  at  the  suit  of  the  party  grieved  or  a 
common  informer.  And  if  a  statute  prohibits  the  doing  an 
act  under  a  penalty  or  a  forfeiture  to  be  paid  to  a  party 
grieved,  and  do  not  prescribe  any  particular  mode  of  recovery, 
it  might  be  recovered  in  this  form  of  action.  Where  a  penal 
statute  expressly  gives  the  whole  or  a  part  of  a  penalty  to  a 
common  informer,  and  enabled  him  generally  to  sue  for  the 
same,  debt  might  be  sustained ;  and  he  need  not  declare  qui 
tarn,  unless  where  a  penalty  is  given  for  a  contempt ;  but  if 
there  be  no  express  provision  enabling  an  informer  to  sue, 
debt  could  not  be  supported  in  his  name  for  the  recovery  of 
the  penalty.|  ^-n  ac*ion  on  the  case  is  frequently  given  by 
the  express  provision  of  a  statute,  to  a  party  grieved.  When- 
ever a  statute  prohibits  an  injury  to  an  individual,  or  enacts 
that  he  shall  recover  a  penalty  or  damages  for  such  injury, 
though  the  statute  be  silent  as  to  the  form  of  the  remedy,  this 
action  (in  some  instances  also  the  action  of  debt)  may  be 
supported.  Thus,  an  action  on  the  case  may  be  supported  by 
implication,  and  if  a  statute  gives  a  remedy  in  the  affirmative 
without  a  negative,  express  or  implied,  for  a  matter  which  was 
actionable  at  common  law,  the  party  may  sue  at  common  law 
as  well  as  upon  the  statute. ^f  But,  in  some  instances,  the 
statute,  in  conferring  a  new  right  creating  a  liability,  prescribes 

*  Archbold's  Criminal  Pleadings ;  Chitty's  i  Chitty,  i,  120,  <fec.  and  cases  cited. 

Pleadings;  Chitty  on  Criminal  Law;  Green-  ||  Chitty,  i,  p.  127. 

leaf  on  Evidence.  T[  Chitty  on  Pleadings,  i,  p.  163. 

f  Chitty  on  Pleading,  i,  120,  127,  163. 


00  PLEADING. 

• 

a  particular  remedy ;  and  in  that  case  the  remedy  pointed  out, 
and  no  other,  can  be  pursued.  We  have  stated  above  that  a 
common  informer  cannot  sue  unless  an  action  be  expressly 
given  him.* 

These  technical  and  nice  distinctions  are,  however,  now 
rapidly  ceasing  to  be  of  interest,  except  as  matter  of  legal  his- 
tory. The  great  changes  recently  effected  in  this  country  and 
in  England,  have  laid  the  ax  to  the  root  of  the  old  fabric  of 
the  common  law  as  far  as  its  procedure  is  concerned  ;f  and 
wherever  the  modern  and  simple  mode  of  pleading  has  been 
adopted,  actions  on  statutes  are  to  be  brought,  no  doubt,  as  in 
other  instances,  by  a  concise  statement  of  the  facts  on  which 
the  alleged  claim  is  sought  to  be  maintained. 

How  far,  in  actions  at  law  upon  statutes  brought  under  the 
new  system  to  enforce  civil  rights  and  remedies,  it  will  be  nec- 
essary that  the  declaration  or  complaint  refer  to  the  statute, 
does  not  yet  appear  to  be  fully  settled.  Probably,  as  we  have 
already  seen,J  a  public  statute  need  not  be  set  out,  or  even  re- 
ferred to,  in  the  declaration ;  but  must  be  set  up,  if  relied  on, 
by  way  of  defence.  |  As  we  have  seen,  it  is  not  necessary,  at 

*  Chitty,  i,  p.  164.  a  private  •  statute,  or  a  right  derived  there- 

f  Two  acts— 15  and  16  Viet.  c.  76,  and  from,  it  shall  be  sufficient  to  refer  to  such 

17  and  18  Viet.  c.  125 — commonly  known  as  statute  by  its  title,  and  the  day  of  its  passage, 

the  Common  Law  Procedure  Acts  of  1852  and  the  court  shall  thereupon  take  judicial 

and  1854 — and  the  new  rules  of  Hilary  Term,  notice  thereof."    As  to  complaints  on  penal 

1853,  have  wrought  such  extensive  changes  lawa,  see  Morehouse  v.  Crilley,  8  How.  Pr.  B. 

in  the  English  procedure,  that  I  hesitate  to  p.  431. 

speak  with  confidence  of  any  subject  to  which  The  New  York  Code  of  Procedure  is,  as  I 
they  relate.  I  have  examined  them  with  understand  from  my  learned  friend,  D.  D. 
some  care,  but  I  can  find  nothing  directly  on  Field,  Esq.,  one  of  the  Commissioners  who 
the  subject  of  pleading  in  actions  on  statutes,  prepared  it,  substantially  adopted  in  the  fol- 
except  rule  21,  authorizing  reference  in  cer-  lowing  States  of  the  Union:  Ohio,  Indiana, 
tain  pleas  to  statutes  by  date,  chapter,  and  Kentucky,  Missouri,  California,  Minnesota, 
section.  §§  lix,  xci,  and  schedule  B,  of  the  and  Oregon  ;  and  in  Iowa,  Texas,  and  Missis- 
act  of  1852,  give  the  new  forms,  or  rather  sippi,  systems  very  similar  have  been  intro- 
precedents  for  declaration.  They  entirely  duced.  Massachusetts,  by  her  act  of  23d 
abolish  all  the  old  forms  of  action;  but  I  find  May,  1851,  c.  233,  reduced  personal  actions 
no  precedent  for  declaring  on  a  statute.  to  three — assumpsit,  covenant,  and  debt — and 
The  New  York  Code  of  Procedure  has  no  all  actions  of  tort  to  one  class,  excepting  re- 
particular  provision  as  to  how  actions  are  to  plevin,  which  was  retained.  See  Sedgwick 
be  brought  on  public  statutes.  It  simply  de-  on  Damages,  2d  ed.  p.  43  in  note,  for  an  ab- 
clares  that,  in  all  cases,  "  the  complaint  shall  stract  of  the  act.  It  is  very  plain  that  what 
contain  the  title  of  the  cause,  specifying  the  is  left  of  the  old  common-law  system  of 
name  of  the  court,  the  name  of  the  county  pleading,  cannot  long  survive.  Its  forms 
where  trial  to  be  had,  and  the  names  of  the  still  subsist,  however,  in  some  of  the  federal 
parties ;  then  is  to  follow  a  plain  and  concise  tribunals,  which  would,  perhaps,  be  wise  to 
statement  of  the  facts  constituting  the  cause  of  imitate  so  many  precedents  of  demolition. 
action,  without  unnecessary  repetition,  and  a  .  ±  Ante,  p.  26. 

demand  of  the  relief  sought  against  the  de-  |  Lewin  v.  Stewart  et  al.  10  Howard  Pr. 

fendant." — Code,  tit.  vi,  §  142.     As  to  private  R.  509. 
statutes,  it  declares,  §  163, "  That  in  pleading 


PLEADING.  91 

common  law,  in  pleading,  to  state  any  matter  which  the  court 
is  bound  to  know ;  and  so  it  is  unnecessary  to  state  matter  of 
common  or  public  statute  law.*  So,  in  an  action  on  a  statutory 
security,  as  a  replevin  bond,  it  is  not  necessary  to  aver  in  terms 
that  the  bond  was  taken  in  pursuance  of  the  statute,  f  But  in 
New  York,  in  criminal  prosecutions  for  offences  created  by 
statute,  it  has  been  declared,  under  the  old  system,  that  a  refer- 
ence to  the  statute  is  necessary,  in  order  to  inform  the  defend- 
ant distinctly  of  the  nature  of  the  offence ;  and  so  in  penal 
actions  founded  on  a  statute.^ 

Great,  indeed,  as  are  the  changes  which  have  been  wrought, 
both  in  England  and  the  United  States,  by  legislation  on  this 
subject,  it  is  still  important  to  bear  in  mind  the  old  rules,  as 
they  will  no  doubt  more  or  less  affect,  and  in  some  cases  may 
control,  the  application  of  the  new  system.  An  indictment  for 
an  offence  against  a  statute  must,  by  the  ancient  rules  of  plead- 
ing, with  precision  and  certainty  charge  the  defendant  to  have 
committed  or  omitted  the  acts,  under  the  circumstances  and 
with  the  intent  mentioned  in  the  statute ;  and  if  any  one  of 
these  ingredients  be  omitted,  the  defendant  may  demur  and 
move  in  arrest  of  judgment,  or  bring  a  writ  of  error.  The  de- 
fect will  not  be  aided  by  verdict,  nor  be  cured  by  the  formal 
conclusion  that  the  defendant's  acts  are  contra  formam  statuti.\ 
So  in  New  York,  it  has  been  said,  that  "  An  indictment  on  a 
statute  must  state  all  such  facts  and  circumstances  as  constitute 
the  statute  offence,  so  as  to  bring  the  party  indicted  precisely 
within  the  provisions  of  the  statute.  If  the  statute  is  confined 
to  certain  classes  of  persons,  or  to  acts  done  at  some  particular 
time  or  place,  the  indictment  must  show  that  the  party  indicted, 
and  the  time  and  place  where  the  alleged  criminal  acts  were 
perpetrated,  were  such  as  to  bring  the  supposed  offence  directly 

*  Stephens  on  Pleading,  351-2-3 ;  Chitty  of  the  legislator,  to  recite   the  statutes  on 
on  Bills,  578,  Am.  ed.  of  1836.  which  it  is  founded;  for  the  judges  are  bound, 
f  Shaw  v.  Tobias,  3  Corns.  188.  ex  officio,  to  take  notice  of  all  public  acts  of 
\  Shaw  v.  Tobias,  3  Corns.  188.     In  crim-  Parliament,  and  where  there  are  more  than 
inal  cases,  Mr.  Chitty  gives,  as  the  common-  one,  by  which  the  proceedings  can  be  main- 
law  rule,  that  the  parts  of  a  private  act  on  tained,  they  will  refer  to  that  which  is  most 
which  an  indictment  is  framed  must  be  set  for  the  public  advantage. — Chitty's  Criminal 
out  specially ;  but  that  there  is  no  necessity,  Law,  vol.  I,  p.  276. 

in  any  indictment  or  information  on  a  public  ||  Archbold's   Criminal  Pleading ;  Indict- 

statute,  whether  the  offence  be  evil  in  its  own  ment,  p.  51,  and  cases  cited, 
nature,  or  only  becomes  so  by  the  prohibition 


92  PLEADING. 

within  the  statute.  Thus,  an  indictment  under  the  statute 
against  embezzlement  by  clerics  and  servants,  is  bad  if  it  allege 
that  the  defendant  received  the  money  or  property  as  an  agent* 
So,  in  the  same  State,  where  the  statute  against  lotteries  pro- 
hibits any  person,  unauthorized  by  special  laws,  from  opening, 
<fec.,  any  lottery,  <fec.,  for  the  purpose  of  exposing,  setting  to 
sale,  or  disposing  of  any  real  or  personal  property,  the  indict- 
ment must  state  that  the  lottery  is  set  on  foot  for  the  purpose 
of  disposing  of  property ;  and  if  not,  it  is  bad  on  demurrer,  f 
But  where  the  fact  appears  from  the  advertisement  set  out  at 
large  in  the  indictment,  it  was  held  to  be  sufficient.  J 

Mere  surplusage  in  an  indictment  will  not  vitiate,  and 
therefore  where  an  indictment  alleges  facts  which  constitute  a 
misdemeanor,  it  will  be  good  for  that  offense,  although  it  state 
other  facts  which  go  to  constitute  a  felony,  but  all  the  facts 
alleged  fall  short  of  the  charge  of  felony,  in  consequence  of 
some  other  fact  essential  to  that  charge,  e.  g.,  the  intent  of  the 
party  accused,  not  being  averred.  | 

By  the  Kevised  Statutes  of  New  York,  if  property  was  re- 
ceived contrary  to  the  provisions  of  any  statute,  and  an  action 
was  brought  against  the  offending  party,  it  was  declared  suffi- 
cient, without  setting  forth  the  special  matter,  to  declare  that 
the  property  was  received  or  converted,  &c.,  contrary  to  the 
provisions  of  the  statute  in  question,  describing  it  in  some  brief 
and  general  way,  as  "  the  statute  against  betting  and  gaming ; " 
and  under  this  act  it  was  held  essential  that  the  reference 
should  be  made  in  the  declaration ;  and  in  an  action  of  this 
description  a  new  trial  was  ordered,  on  the  ground  that  an 
objection  founded  on  the  omission,  was  taken  and  over- 
ruled.*^ Sometimes  an  act  is  continued  by  a  subsequent 
statute,  and  then  proceedings  may  be  laid  to  have  been 
taken  by  the  first  act ;  as  "  when  an  act  is  continued,"  says 
Chief  Justice  Kaymond,  "everybody  is  estopped  to  say  it  is 
not  in  force."  ** 

•People  v.   Allen,  6  Demo,  77 ;  1   Chit.          J  Charles  v.  The  People,  1   Corns.    180; 
Crim.  Law,  281,  et  seq.  ;  Archb.  Crim.  PI.  50 ;     see  The  People  v.  Rynders,  12  Wend.  425. 
3  Chit.  Crim.  Law,   962 ;   Archb.  Crim.  PI.  |  Lohman  v.  The  People,  1  Corns.  379. 

275  ;  3  Maule  &  Sel.  539.  J  J  R.  8.  352,  §§  1,  2,  and  3  ;  Schroeppell 

f  People  v.  Payne,  3  Denio,  88.  v.  Corning,  2  Corns.  132. 

**  Rex  v.  Morgan,  2  Str.  1066. 


PROOF   OF    STATUTES.  93 

We  have  already  seen  *  that  if  there  be  any  exception  con- 
tained in  the  same  clause  of  the  act  which  creates  the  offence 
— i.  e.,  by  way  of  proviso — the  indictment  must  show  nega- 
tively that  the  defendant,  or  the  subject  of  the  indictment, 
does  not  come  within  the  exception.  But  if  the  exception  or 
proviso  be  in  a  subsequent  clause  or  statute,  it  is  in  that  case 
matter  of  defence,  and  need  not  be  negatived  in  pleading,  f 
Where,  however,  a  statute  makes  a  deed  or  agreement  or  other 
act  void,  unless  made  upon  a  specified  consideration,  or  under 
specified  circumstances,  the  plaintiff  must  show  that  the 
circumstances  exist  under  which  alone  it  can  have  validity. 
So  in  New  York,  where  a  statute  declares  all  wagers  void,  but 
also  declares  that  this  shall  not  apply  to  insurances  made  in 
good  faith  for  the  indemnity  of  a  party  insured ;  it  was  held, 
that  it  being  the  intention  of  the  statute  to  prevent  wager 
policies,  a  declaration  on  a  policy  must  contain  an  averment  of 
interest.  £  The  rule  at  common  law  is,  that  in  suits  on  bonds 
or  deeds,  all  the  obligees  or  covenantees,  if  alive,  must  join  as 
plaintiff  in  bringing  the  action.  But  this  rule  may  be  altered 
by  statute ;  and  where  an  act  declared  that  a  bond  given  for 
the  benefit  of  attaching  creditors  might  be  prosecuted  "by 
them  jointly,  or  by  any  one  of  them  separately,"  it  was  held 
that  a  suit  might  be  brought  by  a  single  creditor  on  the  bond, 
in  his  own  name."  | 

Proof  of  Statutes. — We  have  already  had  occasion  to  call 
attention  to  some  of  the  rules  in  regard  to  the  proof  of  stat- 
utes. T  Public  statutes  require,  indeed,  no  proof;**  the  courts 

*  Ante,  p.  50.  authority  of  a  public  act  of  the  Legislature, 
f  Archbold's  Criminal  Law,  i,  p.  53  ;  Chit-  and  the  supposed  greater  notoriety  of  a  mat- 
ty,  Criminal  Law,  i,  p.  284.  This  last  work  ter  of  universal  concern,  the  extreme  incon- 
contains,  under  the  head  of  Indictments  on  venience  of  a  contrary  rule,  and  the  difficulty 
Statutes,  vol.  I,  p.  275,  a  very  full  discussion  and  uncertainty  of  which  it  would  be  pro- 
of this  branch  of  the  subject.  ductive. 

\  Williams  v.    Insurance    Co.   of     North  "From  the  extensive  destruction  of  ancient 

America,  per  Woodruff,  J.,   9  Howard  P.  R.  documents,  particularly  in  the  Barons'  wars, 

365.  some  early  acts  are  entirely  lost,  while  others 

I  Pearce  v.  Hitchcock,  2  Corns.  388  ;  over-  are  only  partially  and  doubtfully  preserved, 
ruling  Arnold  v.  Tallmadge,  19  Wend.  52*7.  "  A  few  of  "he  most  important  of  the  early 
^f  Ante,  p.  26  et  seq.,  and  p.  55.  statutes  (those  of  Merton  and  Marlbridge,  for 
**  Mr.  Dwarris  thus  states  the  reason  of  instance)  are  not  on  record,  but  have  been 
the  distinction   between  public   and  private  found  in  books  and  memorials.     It  is  import- 
acts,  as  to  the  proof  of  them :  "  The  prob-  ant  that  the  existence  of  these  acts  should  not 
able  grounds  of  the  declared  difference  in  the  be  put  on  the  issue  of  nul  tiel  record. 
judicial  notice  of  statutes,  public  and  private,  "Being   made   within   the  time  of  legal 
may  be,  besides  the  solemnity  and  intrinsic  memory,  they  have  authority  only,  it  is  im- 


94  PROOF   OF   STATUTES. 

are  bound  to  take  notice  of  them,  and  are  assumed  to  select 
the  best  and  most  accurate  mode  of  inforrnino-  themselves  of 

O 

their  precise  tenor.  So,  the  courts  are  bound  to  take  notice  of 
the  statutes  establishing  banks  and  regulating  the  rates  of 
exchange.* 

Private  statutes,  on  the  other  hand,  must  be  proved,  either 
by  an  examined  copy  or  by  an  exemplification  under  the  great 
seal.  But  if  a  clause  is  inserted  in  a  private  statute  that  it 
shall  be  taken  notice  of  as  if  it  were  a  public  act,  the  necessity 
of  proving  it  is  dispensed  with.f  So,  a  private  act  may  contain 
clauses  of  a  public  nature ;  and  then  the  act,  so  far  as  those 
clauses  are  concerned,  is  to  be  regarded  as  a  public  act.J  Thus, 
a  clause  relating  to  a  public  highway,  occurring  in  a  private  in- 
closure  act,  has  been  held  provable  in  the  same  way  as  a  public 
act.  I  In  England,  the  regular  proof  of  private  acts  of  Parlia- 
ment is  by  an  examined  copy,  compared  with  the  original  in 
the  parliament  office  at  Westminster. ^[ 

These  distinctions**  only  apply  to  the  laws  of  the  State  or 
country  to  which  the  courts  belong  in  which  the  question  is 
raised.  As  to  foreign  laws,  they  have  always  to  be  proved  as 
facts.  And  in  this  country,  where  the  States  are  held  to  be,  for 
all  purposes  not  coming  within  the  scope  of  the  federal  Consti- 
tution, wholly  independent  of  each  other,  the  statutes  of  the 
sister  States  are  to  be  proved  as  facts ;  and  no  judicial  notice 
can  be  taken  of  them,  whether  they  be  public  or  private.f  f  Nor 
can  they  be  proved  by  parol  evidence,  any  more  than  any  other 
written  document,  the  original  or  a  proved  copy  of  which  can 
be  obtained.  JJ  It  is  the  general  practice,  however,  in  this  coun- 
try, to  have  the  laws  of  each  State  printed  by  authority;  and 

portant  to  bear  in  mind,  as  statutes;  and  are  416 ;  and  "Woodward  v.  Cotton,  1  C.  M.  &  R. 

not  (like  statutes  passed  before  that  time)  a  44,  47. 

part  of  the  common  law.  ±  Dwarris,  vol.  ii,  pp.  464  and  472. 

"  According,  however,  to  the  received  doc-          |  Rex  v.  Utter  by,  2   Phil.  Ev.  p.   127; 

trine,  though  not  found  upon  the  statute  roll,  Dwarris,  vol.  ii,  p.  472. 
they  are  held  not  to  lose  their  force  as  stat-          ^[  Dwarris,  voL  ii,  p.  466. 
utes,  if  any  authentic  memorials  of  their  be-  **  In  Biddes  v.  James,  6  Binney,  321,  C. 

ing  such  are  to  be  found  in  books,  seconded  J.  Tilghman  says,  these  distinctions  as  to  the 

with  a  generally  received  tradition  attesting  proof  of   public   and  private  laws,   are    no 

and  approving  the  same." — Dwarris,  vol.  II,  longer  satisfactory  in  the  present  state  of  the 

p.  466 ;  Hale's  Hist.  Com.  Law,  p.  16.  world. 

*  Bronson  v.  Wiman,  10  Barb.  406.  f  f  Taylor  v.  Boardman,  25  Vermont,  581. 

f  Beaumont  v.  Mountain,  10  Bing.  404;  \\  Martin  v.  Payne,  11  Texas,  292. 

see,  on  this  point,  Brett  v.  Beale,  1  M.  &  M. 


REPEAL  OF  STATUTES.  95 

official  publications  of  this  kind  will,  it  seems,  be  received  in 
the  sister  States,  and  treated  with  the  same  respect  as  exempli- 
fications under  seal.*  In  England  also,  now,  by  the  statute  41 
Geo.  Ill,  c.  90,  s.  9,  made  for  the  better  and  more  effectual 
proof  of  the  statute  law,  it  has  been  enacted  that  the  copies  of 
the  statutes  of  Great  Britain  and  Ireland  prior  to  the  union, 
printed  by  the  printer  duly  authorized,  shall  be  received  as  con- 
clusive of  the  several  statutes  in  the  courts  of  either  kingdom.f 

We  may  notice,  in  this  connection,  an  interesting  applica- 
tion of  the  doctrine  of  presumptions  to  the  proof  of  statutes. 
It  has  been  repeatedly  held  in  England,  in  cases  of  long  and  un- 
interrupted possession,  defective,  however,  in  not  showing  a 
regular  origin  of  title,  that  it  might  be  left  to  the  jury  to  pre- 
sume the  existence  of  a  statute  or  royal  grant  in  which  the 
occupancy  might  be  supposed  to  have  taken  its  commence- 
ment. J  And  so  in  an  early  case,  it  was  said,  "  For  that  the 
possession  had  gone  otherwise  ever  since,  the  court  presumed 
that  there  had  been  such  an  act  of  Parliament,  though  not  now 
to  be  found.  So,  the  court  here  was  ready  to  recommend  it  to 
the  jury  as  a  strong  presumption."  |  So  again,  in  a  modern 
case;  "There  is  a  great  difference,"  said  Lord  Mansfield,  with 
his  usual  felicity  of  style  and  clearness  of  reasoning,  "  between 
length  of  time  which  operates  as  a  bar  to  a  claim,  and  that 
which  is  used  only  by  way  of  evidence.  *  *  Length  of  time 
used  merely  by  way  of  evidence,  may  be  left  to  the  jury,  to  be 
credited  or  not,  and  not  to  draw  their  inference  one  way  or  the 
other  according  to  circumstances."  ^f 

Repeal. — If  the  repeal  of  a  statute  is  effected  by  express  and 
positive  words,  the  only  question  is  the  effect  of  the  repeal. 
But  statutes  are  often  held  to  be  constructively  repealed,  and 
on  this  subject  many  nice  and  important  cases  have  arisen,  (a) 

*  Biddes  v.  James,  6  Binney,  321,  where  f  Dwarris,  vol.  ii,  p.  472. 

C.  J.  Tilghman  says,  "I  am  for  admitting  the  i  Best  on  Presumptions,  p.  145. 

printed  copies  authorized  by  the  Legislature          |  Viscountess  Stafford  &  Lewellin,  Skinn. 

of  this  or  any  other  State,  whether  the  laws  be  p.  78. 

public  or  private."    Martin  v.  Payne,  1 1  Texas,  ^[  The  Mayor  of  Hull  v.  Homer,  Cowper, 

292 ;  Young  v.  Bank  of  Alexandria,  4  Cranch,  102  ;  Eldridge  v.  Knott,  Cowper,  215  ;  Lopez 

384;  Greenleaf  on  Evidence,  §  479,  et  seq.  v.  Andrew,  3  Man.  <fe  Ryl.  329. 

(a)  fiepeal  in  Cases  of  Re-enactment  or  Amendment. — The  simple  re-enactment  of  an 
existing  law  does  not  necessarily  repeal  it.     Cordell  v.  State,  22  Ind.  1.    Nor  does 


96  REPEAL  OF  STATUTES. 

It  is  sometimes  laid  down  as  a  rule,  that  a  statute  cannot  be 
repealed  by  the  mere  absence  of  all  practice  or  proceedings 
under  it,  or  as  it  is  called  non  user.  Est  conveniens  naturali 
equitati  unumquodque  dissolvi  eo  ligamine  quo  ligatum  est. 
Nothing  short  of  a  statute  can  repeal  a  statute.*  But  we  shall 
hereafter  see  that  custom  is  of  great  force  in  the  construction  of 

*  Dwarris,  vol.  ii,  p.  529 ;  White  v.  Boot,  2  T.  R.  274. 

the  enactment  of  a  law  almost  in  the  same  words,  there  being  no  conflict.  Kesler  v. 
Smith,  66  N.  C.  154.  See  note  to  "  Revision."  But  a  repealing  clause  takes  effect, 
although  uno  flatu  the  old  statute  is  re-enacted  verbatim.  State  v.  King,  12  La.  Ann. 
593  (a  criminal  statute) ;  but  per  contra  see  Fullerton  v.  Spring,  3  Wise.  667  (a  stat- 
ute of  limitations),  and  see  Rich  v.  Coffin,  45  Me.  507. 

Where  a  town  was  authorized  to  make  a  particular  by-law,  and  afterwards  the 
statute  was  repealed,  but  simultaneously  re-enacted  in  a  revision  of  the  laws,  it  was 
held  that  the  Legislature  did  not  intend  to  repeal  the  by-law,  but  that  it  remained  in 
force.  Lisbon  v.  Clarke,  18  N.  H.  234.  In  another  case  a  repeal  absolute  in  its 
terms  was  limited  by  construction,  the  court  holding  that  the  general  purpose  of  the 
later  statute  was  to  give  a  new  charter,  and  not  to  repeal  provisions  as  to  criminal 
courts.  Smith  v.  People,  47  N.  T.  330. 

The  intent,  however  awkwardly  expressed,  governs.  Thorpe  v.  Schooling,  7 
Nev.  15.  Inconsistency  between  two  acts  will  not  repeal  the  earlier  one,  if  the  intent 
not  to  do  so  is  expressed  in  the  later  statute.  People  v.  Kelly,  7  Robt.  592. 

An  amendment  of  a  section  so  that  it  "  shall  hereafter  read  as  follows,"  repeals 
such  section  State  v.  Andrews,  20  Tex.  230,  at  least  as  to  all  that  does  not  appear 
in  the  section  as  amended.  State  v.  Ingersoll,  17  Wise.  631.  A  repeal  of  "  section 
46  "  in  a  certain  act,  is  a  repeal  of  such  section  as  amended  by  subsequent  statutes, 
although  they  are  not  referred  to  in  the  repealing  act.  Blake  v.  Brackett,  47  Me.  28 ; 
but  it  was  held  otherwise  when  the  section  had  been  amended  by  an  addition,  and 
was  repealed  without  mention  of  the  addition  and  was  re-enacted  in  the  same  statute 
with  a  slight  change,  also  without  mentioning  the  addition ;  the  court  declared  the 
intention  to  be  that  the  addition  should  remain  in  force.  Cramer  v.  State,  18  Wise. 
257. 

A  specific  repeal  of  one  section  implies  that  the  whole  statute  is  not  repealed. 
State  v.  Morrow,  26  Mo.  131;  Crosby  v.  Patch,  18  Cal.  438.  A  general  amendment 
of  a  charter  was  held  not  to  repeal  an  act  relating  to  the  improvement  of  a  particular 
street.  King  v.  Brooklyn,  42  Barb.  627.  The  incorporation  into  the  charter  of  a 
corporation  of  certain  provisions  of  a  general  law  imposing  liabilities  cannot  be 
taken  as  a  repeal  of  such  general  law  quoad  the  corporation,  or  as  an  exemption  from 
other  liabilities  imposed  by  such  general  law,  the  charter  being  expressly  made  sub- 
ject to  existing  general  laws.  Pratt  v.  Atlantic,  &c.  R.  R.  42  Me.  579.  The  giving 
authority  in  general  terms  to  commissioners  to  lay  out  such  streets  as  they  deem 
necessary  within  the  limits  of  a  certain  borough,  will  not  authorize  them  to  run  a 
street  through  a  graveyard,  there  being  a  general  law  forbidding  the  laying  out  of  a 
street  through  any  burial  ground.  Egypt  Street,  2  Grant's  Gas.  (Penn.)  455.  An 
act  of  Congress  upon  a  subject  within  its  jurisdiction,  but  upon  which  there  has 
been  State  legislation,  does  not  repeal  the  State  statutes,  but  renders  them  inopera- 
tive. Sturgis  v.  Spofford,  45  N.  T.  446. 


REPEAL  OF  STATUTES.  ,  97 

statutes ;  and  on  the  same  principle,  it  seems  difficult  to  deny 
that  long  and  uniform  disuse  might  amount  in  some  cases  to  a 
practical  repeal.  So,  where  there  had  been  a  constant  practice 
not  to  file  an  affidavit  under  an  old  statute,  the  court  held  the 
act  unnecessary.*  The  philosophical  legislators  who  in  framing 
the  Code  Napoleon,  raised  to  their  memories  an  imperishable 
monument,  say,  in  their  preliminary  report,  "  It  might  be  dan- 
gerous formally  to  authorize  repeal  by  desuetude  or  non  user. 
But  it  is  impossible  to  overlook  or  underrate  the  influence  and 
utility  of  that  spontaneous  concert  of  action,  that  invisible 
power,  by  which,  without  shock  or  commotion,  a  people  does 
justice  upon  bad  laws,  protects  society  against  hasty  or  incon- 
siderate legislation,  and  in  fact  guards  the  legislator  against 
himself."f  In  Scotland,  indeed,  it  is  said  that  a  statute  loses 
its  force  by  desuetude,  if  it  has  not  been  put  in  force  for  sixty 
years.  By  others,  this  term  has  been  extended  to  a  century, 
and  a  distinction  is  made  between  statutes  half  obsolete  and 
those  in  vividi  observantia.^ 

In  the  English  houses  of  Parliament,  a  rule  prevails  that  no 
bill  can  be  introduced  in  repeal  of  or  in  opposition  to  any  law 
passed  at  the  same  session.  And  in  order  to  obviate  this,  it  is 
there  the  practice  to  insert  in  every  bill,  a  clause  providing  that 
the  act  may  be  amended  or  repealed  at  the  same  session.  |  No 
general  rule  or  practice  of  this  kind  prevails  in  this  country. 
But  the  Constitution  of  the  State  of  Texas  contains  this  clause : 
"  After  a  bill  or  resolution  has  been  rejected  by  either  branch 
of  the  Legislature,  no  bill  or  resolution  containing  the  same  sub- 
stance, shall  be  passed  into  a  law  during  the  same  session."^]" 

In  regard  to  the  mode  in  which  laws  may  be  repealed  by 
subsequent  legislation,  it  is  laid  down  as  a  rule,  that  a  general 
statute  without  negative  words,  will  not  repeal  the  particular 
provisions  of  a  former  one,  unless  the  two  acts  are  irreconcila- 

*  Leigh  v.  Kent,  3  T.  R.  362.  delibere,   de  cette   puissance  invisible,   par 

„  -|-  "  Les    lois   conservent  leur  effet,   tant  laquelle  sans  sec insse  et  sans  commotion,  les 

Su'eiles  ne  sont  point  abrogees  par  d'autres  peuples  se  font  justice  des  mauvaises  lois,  et 

iis,  ou  qu'elles  ne  3ont  point  tombees  en  de-  qui  semblent  proteger  la  societe  eontre  lea 

suetude.     Si  nous  n'avons  pas  formellement  surprises  faites  au  legislateur,  et  le  legislateur 

autorise  le  mode  d'abrogation  par  la  desuetude  centre  lui  meme  I " — Discoiirs  Preliminaire. 
ou  le  non  usage,  c'est  qu'il  cut  peut  etre  ete          1  Dwarris,  p.  529. 
dangereux  de  le  faire.     Mais  peut  on  se  dis-          |  Dwarris,  vol.  i,  p.  269. 
eimular  1'mfluence  et  1'utilits  de  ce  concert  *j[  Cons,  of  Texas,  Art.  Hi,  §  22. 

7 


98  REPEAL  BY  IMPLICATION. 

bly  inconsistent ;  *  as,  for  instance,  the  statute  5  Elizabeth,  c. 
4,  that  none  shall  use  a  trade  without  being  apprentice,  did  not 
take  away  the  previous  statute  4  &  5  Philip  and  Mary,  c.  5, 
declaring  that  no  weaver  shall  use,  <fec.  The  reason  and  phi- 
losophy of  the  rule  is,  that  when  the  mind  of  the  legislator  has 
been  turned  to  the  details  of  a  subject,  and  he  has  acted  upon 
it,  a  subsequent  statute  in  general  terms,  or  treating  the  subject 
in  a  general  manner,  and  not  expressly  contradicting  the  orig- 
inal act,  shall  not  be  considered  as  intended  to  affect  the  more 
particular  or  positive  previous  provisions,  unless  it  is  absolutely 
necessary  to  give  the  latter  act  such  a  construction,  in  order 
that  its  words  shall  have  any  meaning  at  all.  (a)  So  where  an 

*  Dwarris  on  Statutes,  532;  6  Rep.  196;     Brown  v.  County  Com.,  21  Perm.  37;  Ornit  v. 

Commonwealth,  21  Penn.  426. 

(a)  Repeal  by  Implication.  Such  Repeal  not  Favored, — Ordinarily  express  language 
is  used  where  a  repeal  is  intended,  and  a  repeal  by  implication  is  not  favored.  Casey 
v.  Harned,  5  Clarke  (la.),  1 ;  St.  Louis  v.  Ind.  Ins.  Co.  47  Mo.  146 ;  Gillette  v.  Sharke, 
7  Nev.  245 ;  U.  S.  v.  One  Hundred  Bbls.  of  Spirit,  2  Abb.  U.  S.  R.  305  (revenue  laws) ; 
and  where  the  acts  are  upon  different  subjects,  the  rule  as  to  implied  repeal  applies 
more  forcibly.  Rawson  v.  Rawson,  52  111.  63.  When  acts  can  be  harmonized  by  a 
fair  and  liberal  construction  it  must  be  done.  Connor  v.  Southern  Express  Co.  37 
Geo.  397;  People  v.  Barr,  44  111.  198;  and  the  same  rule  applies  to  sections  of  the 
same  statute.  Wilcox  v.  State,  3  Heisk.  (Tenn.)  110.  If  possible  to  reconcile  the 
acts,  it  will  be  done.  McCool  v.  Smith,  1  Black,  459;  Henderson's  Tobacco,  11  Wall. 
652;  The  Distilled  Spirits,  11  Wall.  356.  The  implication  of  repeal  must  be  a  neces- 
sary one.  Naylor  v.  Field,  5  Dutch.  287.  If  two  statutes  on  the  same  subject  can 
stand  together  without  destroying  the  evident  intent  and  meaning  of  the  later  one, 
there  will  be  no  repeal.  Roberts  v.  Fahs,  36  111.  268;  as  where  there  was  an  appro- 
priation of  a  fund  to  the  redemption  of  certain  bonds,  and  afterwards  an  appropria- 
tion out  of  the  fund  for  a  different  purpose,  it  was  held  that  the  latter  act  referred 
only  to  the  surplus.  State  v.  Bishop,  41  Mo.  16. 

Generalia  Specialibus  non  derogant. — A  general  affirmative  statute  does  not  repeal 
a  prior  particular  statute,  or  prior  particular  provisions  of  a  statute,  unless  negative 
words  are  used,  or  unless  there  is  such  irreconcilable  inconsistency  as  indicates  an 
iptent  of  the  Legislature  to  repeal.  Robbins  v.  State,  8  Ohio,  N.  S.  131  (an  act  pun- 
ishing killing  by  administering  poisonous  drugs  to  procure  abortion,  not  repealed  by 
statute  punishing  killing  while  engaged  in  any  unlawful  act).  McDonough  County 
v.  Campbell,  42  HI.  490 ;  Hume  v.  Gossett,  43  111.  297 ;  Luke  v.  State,  5  Florida,  185. 
(act  in  relation  to  crimes  of  slaves  not  repealed  by  an  act  in  relation  to  crimes  gen- 
erally). Gate  v.  State,  3  Sneed.  (Tenn.)  120 ;  Magruder  v.  State,  40  Ala.  347 ;  State 
v.  Alexander,  14  Rich.  Law,  247 ;  State  v.  McDonald,  38  Mo.  529 ;  State  v.  Bishop, 
41  Mo.  16 ;  State  v.  Macon  Co.  Court,  41  Mo.  453 ;  Ellis  v.  Batts,  26  Tex.  703 ;  State 
v.  Kitty,  12  La.  Ann.  805;  St.  Martins  v.  New  Orleans,  14  La.  Ann.  113.  See  also, 
as  illustrating  the  same  rule  that  a  mere  general  law  does  not  repeal  a  special  one, 
London,  &c.  R.  R.  v.  Limehouse  Board  of  Works,  3  Kay  &  J.  123 ;  Thorpe  v.  Adams, 


REPEAL  BY  IMPLICATION.  99 

act  of  Parliament  had  authorized  individuals  to  inclose  and 
embank  portions  of  the  soil  under  the  river  Thames,  and  had 

Law  R.  6  C.  P.  125 ;  Queen  v.  Champneys,  Tb.  884 ;  and  although  there  is  a  saving 
clause  of  special  acts  in  other  statutes  in  pari  mater  ia,  and  none  in  the  statute  in 
question,  this  absence  of  the  saving  clause  does  not  indicate  an  intention  that  these 
prior  special  acts  should  be  repealed.  Fitzgerald  v.  Champneys,  2  Johns.  &  H.  31. 

The  following  are  some  instances  in  which  this  doctrine  has  been  invoked  and 
applied,  or  in  which  it  has  been  held  not  to  apply.  A  special  law  giving  remedies 
is  not  repealed  by  a  general  one,  Pearce  v.  Bank  of  Alabama,  33  Ala.  693 ;  nor  par- 
ticular statutes  for  the  relief  of  individuals,  without  express  words,  Beridon  v.  Bar- 
bin,  13  La.  Ann.  458;  nor  will  a  special  exemption  of  particular  property  from  mu- 
nicipal taxation  be  atfected  by  a  subsequent  general  statute  giving  cities  power  to 
tax  "  all  property  "  within  their  limits,  there  being  no  express  repeal,  Blain  v.  Bailey, 
25  Ind.  165 ;  nor  was  a  prior  special  statute,  authorizing  a  certain  town  to  subscribe 
in  aid  of  a  railroad,  and  to  raise  sufficient  money  by  taxation  to  pay  the  interest  on 
the  bonds  issued  thereunder,  repealed  by  a  general  law  which  limited  municipal 
taxation  to  pay  interest  on  a  public  debt  to  the  annual  rate  of  six  mills  on  the  dollar 
of  assessed  property.  Fosdick  v.  Perrysburg,  14  Ohio,  N.  S.  472 ;  and  see  Clark  v. 
Davenport,  14  Iowa,  494.  A  special  charter  or  statute  prevails  over  the  general  law, 
Burke  v.  Jeffries,  20  Iowa,  145 ;  Crane  v.  Reeder,  22  Mich.  322 ;  and  special  pro- 
visions of  a  statute  over  the  general  ones,  Felt  v.  Felt,  19  Wise.  193;  and  where  two 
statutes  approved  on  the  same  day  have  repugnant  provisions,  those  which  are  spe- 
cial must  prevail  over  those  which  are  general.  Mead  v.  Bagnall,  15  Wise.  156.  The 
rule  has  been  laid  down  in  this  form ;  the  repeal  of  a  special  statute  enacted  for  a 
special  purpose  must  either  be  express,  or  the  manifestation  of  the  legislative  intent 
to  repeal  must  be  so  clear  as  to  be  equivalent  to  an  express  direction.  Cole  v.  Super- 
visors, 11  Iowa,  552. 

When,  however,  the  inconsistency  between  a  private  and  a  general  act  is  such  as 
to  show  an  intent  to  repeal  the  former,  the  private  act  must  yield.  Great  Central, 
&c.  Co.  v.  Clarke,  13  C.  B.  (N.  8.)  838.  It  is  said  that  general  laws  control  local 
laws,  even  though  the  latter  are  subsequent,  unless  a  special  contrary  intent  is  shown. 
Commonwealth  v.  Pointer,  5  Bush.  (Ky.)  301.  This  decision  must  clearly  be  re- 
stricted to  "local"  laws,  technically  so  called,  as  contradistinguished  from  mere 
special  acts  or  special  provisions  in  acts  whose  objects  are  general,  and  even  with 
such  limitation,  it  seems  to  be  opposed  to  the  ratio  decidendi  of  the  other  cases  cited. 
A  general  statute  against  lotteries  is  not  repealed  absolutely, — and  it  seems  not  quoad 
the  special  statute, — by  an  act  granting  the  right  to  maintain  a  lottery  to  particular 
persons,  the  Constitution  fordidding  special  legislation;  if  either  statute  is  to  give 
way,  it  must  be  the  special  one  creating  the  exception.  Exparte  Smith,  40  Cal.  419. 

A  general  statute  will  not  be  construed  as  adding  other  conditions  to  those 
already  required  by  a  special  statute  relating  to  the  same  subject-matter,  unless  such 
intent  appears  clearly ;  in  this  case  the  intent  was  held  to  appear.  Mobile,  &c.  R.  R. 
v.  State,  20  Ala.  573.  In  another  case,  where  a  municipal  charter  contained  a  pro- 
viso that  the  city  credit  should  not  be  pledged  for  over  $10,000  without  a  vote,  etc., 
a  subsequent  act  giving  the  city  power  to  build  a  bridge  and  pledge  its  credit  there- 
for, without  specifying  whether  a  vote  should  be  had  or  not,  was  held  to  be  subject 
to  this  proviso.  Cumberland  v.  Magruder,  34  Md.  381.  But  in  another  case,  the 
Legislature,  having  by  prior  statutes  given  to  some  towns  authority  to  subscribe  in 
aid  of  railroads,  without  power  to  sell  the  stock  thus  subscribed  for,  and  to  other 


100  REPEAL  BY   IMPLICATION. 

declared  that  suet  land  should  be  "free  from  all  taxes  and 
assessments  whatsoever."  The  land  tax  act,  subsequently 

towns  a  like  authority  with  power  to  sell  the  stock  under  certain  restrictions,  and 
afterwards  having  passed  a  statute  authorizing  all  towns  that  had  subscribed  in  aid 
of  any  railroad  to  sell  their  stock,  without  prescribing  any  restrictions,  it  was  held 
that  this  latter  act  repealed  by  implication  the  limited  power  of  sale  given  to  some 
towns,  and  substituted  the  full  power.  Comm'rs  of  Knox  Co.  v.  McComb,  19  Ohio, 
N.  8.  320,  341. 

When  the  Last  Statute  or  Section  Prevails. — Between  two  inconsistent  and  irrecon- 
cilable acts  or  sections,  the  last  in  time  or  position  prevails.  Johnson  v.  Byrd,  1 
Hemps.  434;  Powers  v.  Barney,  5  Blatch.  C.  C.  202;  Maddox  v.  Graham,  2  Mete. 
(Ky.)  56 ;  Edgar  v.  Greer,  8  Clarke  (la.)  394 ;  although  the  former  is  a  general  law 
and  the  latter  is  a  special  charter.  Tierney  v.  Dodge,  9  Minn.  166  ;  and  see  Wood  v. 
Wellington,  30  N.  Y.  218.  Even  where  the  act  last  approved  was  passed  first,  and 
the  act  first  approved  was  amendatory  of  the  other,  the  one  last  approved  was  held 
to  control ;  thus  a  code  approved  February  llth  provided  that  it  should  go  into 
effect  June  1st,  and  an  act  in  express  terms  amendatory  of  the  code,  providing  that 
the  latter  should  go  into  effect  from  and  after  the  date  of  the  passage  of  the  amenda- 
tory act,  was  approved  February  10th,  it  was  held  that  the  code  still  went  into  effect 
June  1st.  Elliott  v.  Lochnane,  1  Kans.  126.  If  two  grants  of  power  by  the  Legisla- 
ture are  repugnant,  the  second  must  control.  Korah  v.  Ottawa,  32  HI.  121. 

Cumulative  Remedies. — An  act  which  gives  cumulative  and  not  inconsistent 
remedies,  and  especially  one  which  embraces  cases  not  covered  by  the  former 
legislation,  does  not  repeal  prior  statutes  upon  the  same  subject-matter.  Waldo  v.  Bell, 
13  La.  Ann.  329 ;  Mitchell  v.  Duncan,  7  Flor.  13 ;  Raudebaugh  v.  Shelley,  6  Ohio, 
N.  S.  307;  State  v.  Berry,  12  Iowa,  58;  Wilson  v.  Shorrick,  21  Iowa,  332.  Thus,  a 
penalty  given  by  a  building  act,  was  held  to  be  such  a  cumulative  remedy,  and  not 
to  take  away  the  common-law  remedy.  Williams  v.  Golding,  Law  R.  1  C.  P.  69. 

Instances  in  which  there  is  an  Implied  Repeal. — Where  the  second  act  in  pari  materia 
embraces  all  the  provisions  of  the  first,  and  also  new  provisions,  and  imposes  differ- 
ent penalties,  it  repeals  the  former  by  implication.  United  States  v.  Tynen,  11  Wall. 
88.  If  an  affirmative  statute  introduces  a  new  rule,  and  is  plainly  intended  as  a 
substitute  for  a  former  statute,  it  repeals  such  former  act  by  implication;  but  it 
seems  that  if  instead  of  a  change  in  a  former  statute,  the  question  was  of  a  change 
in  the  common  law,  negative  words  would  be  necessary,  Johnston's  Estate,  33  Penn. 
St.  511 ;  that  is,  a  repeal  of  a  statutory  rule  or  provision  is  more  easily  implied,  than 
a  repeal  of  a  common-law  rule.  Where  a  statute  revises  a  whole  subject,  and  is 
inconsistent  with  the  common  law  as  to  that  subject,  it  repeals  the  common  law 
quoad  hoc  by  implication,  but  a  statute  prohibiting  slaughter-houses  in  a  city  without 
license  does  not  come  within  this  rule,  and  does  not  repeal  the  common  law  as  to 
nuisances  resulting  from  such  houses.  State  v.  Wilson,  43  N.  H.  415.  If  two  statutes 
relate  to  the  same  subject-matter,  though  not  in  terms  repugnant  or  inconsistent,  if 
the  latter  one  is  plainly  intended  to  prescribe  the  only  rule  that  shall  govern,  it  will 
repeal  the  earlier.  Sacramento  v.  Bird,  15  Cal.  294 ;  Swann  v.  Buck,  40  Miss.  268  ; 
Weeks  v.  Walcott,  15  Gray,  54;  People  v.  Syttle,  1  Idaho  T.  161.  See  note  to 
"  Revision." 

If  statutes  provide  a  different  punishment  for  the  same  offence,  the  later  will 
repeal  the  earlier.  Gorman  v.  Hammond,  28  Geo.  85  ;  Mullen  v.  People,  31  111.  444 ; 
State  v.  Horsey,  14  Ind.  185  ;  State  v.  Pierce,  II.  302 ;  Mitchell  v.  Brown,  1  E.  &  E. 


REPEAL  BY   IMPLICATION.  101 

passed,  by  general  words  embraced  all  the  land  in  the  king- 
dom ;  and  the  question  came  before  the  King's  Bench,  whether 

267.  The  same  is  true  where  statutes  fix  a  different  salary  for  the  same  office,  Pier- 
pont  v.  Crouch,  10  Cal.  315  ;  and  also  where  the  earlier  statute  gave  a  penalty  to  a 
common  informer,  and  the  later  one  gave  a  penalty  of  the  same  amount  to  the 
party  injured,  and  indicated  an  intent  to  cover  the  whole  subject.  Parry  v.  Croydon, 
&c.  Co.  11  C.  B.  (K  S.)  579.  A  statute  fixing  the  punishment  of  fine,  and  a 
minimum  term  of  imprisonment  is  not  repealed  by  an  act,  which  provides  that 
where  the  accused  shows  it  to  be  his  offence,  the  court  may  in  its  discretion  impose 
the  fine  without  the  imprisonment,  or  vice  versa.  Dolan  v.  Thomas,  12  Allen,  421. 
Where  the  punishment  for  larcenies  of  over  $2,000  is  changed,  that  only  repeals  pro 
tanto  the  existing  law  as  to  larceny.  State  v.  Grady,  34  Conn.  118.  The  change  of 
penalty  consisting  in  making  two  degrees  of  murder,  and  in  mitigating  the  punish- 
ment of  the  second  degree,  it  was  held  there  was  no  repeal.  Commonwealth  v. 
Gardner,  11  Gray,  438.  A  statute  for  punishing  an  offender  in  the  house  of 
correction,  in  the  county  where  the  offence  is  committed,  is  not  repealed,  it  seems,  by 
a  statute  authorizing  his  imprisonment  in  the  discretion  of  the  court  in  the  house  of 
correction  in  any  county.  Carter  v.  Burt,  12  Allen,  424.  Where  the  penalty  is 
increased,  e.  </.,  where  it  being  imprisonment  not  exceeding  one  year,  a  new  statute 
prescribes  imprisonment  not  less  than  three  months  nor  more  than  one  year,  there  is 
a  repeal  of  the  former,  Flaherty  v.  Thomas.  12  Allen,  428  ;  but  it  is  held  in  Alabama, 
that  an  increase  of  penalty  works  no  repeal  by  implication,  but  leaves  the  old 
offences  under  the  old  punishment,  Turner  v.  State,  40  Ala.  21 ;  Miles  v.  State,  40 
Ala.  39 ;  and  this  construction  plainly  serves  to  prevent  the  new  statute  from  being 
an  ex  post  facto  law  as  to  crimes  already  committed. 

If  the  old  law  is  revised  and  re-enacted  with  slight  variations,  there  is  a  repeal, 
e.  g.,  where  the  old  law  required  a  dog  license  in  the  town  of  the  owner's  residence 
under  a  penalty,  and  the  new  law  required  a  license  in  the  town  where  the  dog  was 
kept,  but  prescribed  no  penalty.  Commonwealth  v.  Kelliher,  12  Allen,  480.  Statutes 
which  grant  a  right  upon  different  conditions  from  those  prescribed  in  former 
statutes  are  inconsistent  therewith,  e.  <?.,  where  a  statute  limited  the  right  of  appeal 
to  thirty  days  from  the  confirmation  of  the  report,  and  a  later  statute  gave  the 
appeal  within  thirty  days  from  the  filing  of  the  report,  there  was  a  repeal.  Gwinner 
v.  Lehlgh,  &c.  R.  R.  55  Penn.  St.  126.  By  a  certain  statute  persons  living  within  a 
mile  of  a  toll-gate  were  to  pay  but  half  toll ;  a  second  statute  provided  that  the 
first  should  not  apply  to  persons  engaged  in  transporting  goods  for  others ;  a  third 
statute,  not  mentioning  the  second,  enacted  that  the  first  should  read  so  that  half 
toll  only  should  be  taken  from  persons  living  within  one  mile  of  the  gate,  "  except 
persons  residing  in  a  city  or  incorporated  village  ;  "  it  was  held  that  the  second  act 
remained  in  force,  and  that  persons  engaged  in  transporting  goods  for  others  remained 
liable  for  full  toll,  although  not  living  in  a  city  or  incorporated  village. 
Canastota,  &c.  PI.  R.  Co.  v.  Parkhill,  50  Barb.  601.  Where  a  statute  gave  a  right  of 
appeal  generally,  and  a  later  one  gave  a  right  of  appeal  in  cases  involving  more  than 
$5,  the  former  wae  held  to  be  repealed.  Curtis  v.  Gill,  34  Conn.  49.  Qucere,  is  there 
the  "  irreconcilable  inconsistency  "  between  these  two  statutes  which  the  well  settled 
rule  requires  ?  The  case  is  a  good  illustration  of  the  truth,  that  the  uncertainties  of 
judicial  construction  arise,  not  from  any  uncertainty  about  the  rules  which  should 
be  applied,  but  from  the  varying  application  of  them  made  in  a  given  case.  *or  to 
given  language  in  a  statute. 


102  HEPEAL   BY   IMPLICATION. 

the  land  mentioned  in  the  former  act  had  been  legally  taxed ; 
and  it  was  held  that  the  tax  was  illegal.     Lord  Kenyon  said. 

When  the  same  power  is  given  by  different  statutes  to  different  public  bodies, 
and  the  power  cannot  consistently  with  the  object  of  the  legislation  be  exercised  by 
both,  the  later  statute  will  prevail.  Daw  v.  Metropolitan  Board,  12  C.  B.  (N.  S.) 
161.  A  grant  of  authority  to  county  commissioners  to  create  a  debt,  and  to  provide 
for  the  payment  of  the  interest  thereon,  is  an  enlargement  of  a  power  given  to  lav 
taxes  in  order  to  meet  such  debt,  and  is  an  implied  repeal  of  any  prior  conflicting 
statutory  restrictions  upon  the  taxing  power ;  e.  g.,  it  authorizes  an  assessment  of 
more  than  one  per  cent,  on  the  valuation,  where  that  per  cent,  had  been  fixed  as  the 
limit  by  previous  legislation.  Commonwealth  v.  Commissioners  of  Allegheny,  40 
Penn.  St.  348.  A  statute  authorizing  a  suit  in  the  name  of  the  assignor  by  a 
purchaser  of  a  title,  where  there  was  adverse  possession,  repeals  a  prohibition  of  the 
purchase  and  transfer  of  such  titles,  as  it  seems.  Towle  v.  Smith,  2  Robt.  489. 
Where  after  the  repeal  of  a  statute  creating  the  office  of  city  marshal,  a  law  was 
passed  changing  the  number  of  jurors  which  the  "marshal"  was  required  to 
summon  in  certain  cases,  it  was  held  that  this  reference  to  the  office  as  still  existing 
did  not  operate  to  continue  it  (but  the  marshal  was  in  fact  still  in  office,  for  the 
abolition  of  the  office  had  not  yet  taken  effect,  so  that  the  language  of  the  last  statute 
had  something  to  act  upon).  People  v.  Mahaney,  13  Mich.  481. 

The  following  are  cases  in  which  it  was  held  there  was  no  repeal  by  implication  : 
McAfee  v.  Southern  R.  R.  36  Miss.  669 ;  Casey  v.  Harned,  5  Clarke  (la.)  1 ;  Baker  v. 
Milwaukee,  14  Iowa,  214 ;  Mills  v.  State,  23  Tex.  295  (in  which  it  was  said  the 
effect  of  a  repeal  would  have  been  to  defeat  the  settled  policy  of  the  State) ;  State 
v.  Crow,  20  Ark.  209  ;  Muscogee  R.  R.  v.  Neal,  26  Geo.  120  ;  Industrial  School,  &c. 
v.  Whitehead,2  Beasley,  290;  Shinnv.  Commonwealth,  3  Grant's  Cas.  205;  Richards 
v.  Patterson,  30  Miss.  583 ;  House  v.  State,  41  Miss.  737 ;  Maple  Lake  v.  Wright  Co. 
12  Minn.  403  ;  People  v.  Gerke,  37  Cal.  228 ;  People  v.  San  Francisco  R.  R.  28  Cal. 
254 ;  Citizens'  Bank  v.  Wright,  6  Ohio,  N.  S.  318;  Buckingham  v.  Steubenville,  &c. 
R.  R.  10  Ohio,  N.  S.  25;  State  v.  Roosa,  11  Ohio,  N.  S.  16;  Gallup  v.  Lorain  Co.  20 
Ohio,  N.  S.  324  ;  State  ex  rel.  Olds  v.  Franklin  Co.  20  Ohio,  N.  S.  421 ;  Atty.  Gen. 
v.  Brown,  1  Wise.  513 ;  Lewis  v.  Commonwealth,  3  Bush  (Ky.)  539 ;  Desban  v. 
Pickett,  16  La.  Ann.  350. 

The  following  are  cases  in  which  it  was  held  there  was  a  repeal  by  implication  : 
Peru  &c.  R.  R.  v.  Bradshaw,  6  Ind.  146  ;  Board  of  Comm'rs  v.  Potts,  10  Ind.  286  ; 
State  v.  Smith,  7  Clarke  (la.)  244;  Rochester  v.  Barnes,  26  Barb.  657;  People  v. 
New  York,  32  Barb.  102;  State  v.  Stoll,  2  Rich.  K  S.  538;  Weiss  v.  Mauch  Chunk, 
&c.  R.  R.  58  Penn.  St.  295 ;  People  v.  Grippen,  20  Cal.  677 :  G.  C.  Gas  Consumers'  Co.  v. 
Clarke,  11  C.  B.  (N.  S.)  814  ("where  there  is  an  invincible  contrariety  or  re- 
pugnancy "). 

Extent  of  the  Repeal. — The  repeal  extends  only  as  far  as  the  inconsistency  extends 
Elrod  v.  Gilliland,  27  Geo.  467 ;  and  this  is  so,  even  though  there  is  an  express 
repeal  of  "  all  inconsistent "  acts.  People  v.  Durick,  20  Cal.  94.  A  statute  changing 
the  forms  of  procedure,  and  expressly  repealing  "  all  inconsistent  laws  "  must  be 
construed  as  leaving  the  old  law  in  force,  as  to  pending  cases,  unless  its  terms  are 
clearly  retrospective,  Wochlan  Township  Road,  30  Penn.  St.  156 ;  Hickory  Tree  Road, 
43  Penn.  St.  139;  and  a  change  in  the  remedy  will  not  repeal  the  jurisdiction. 
Hid'. 

Under  a  Constitution  which  forbids  local  legislation,  where  general  laws  can  be 


REPEAL  BY  IMPLICATION.  103 

"It  cannot  be  contended  that  a  subsequent  act  of  Parliament 
will  not  control  the  provisions  of  a  prior  statute,  if  it  were 
intended  to  have  that  operation  ;  but  there  are  several  cases  in 
the  books  to  show,  that  where  the  intention  of  the  Legislature 
was  apparent  that  the  subsequent  act  should  not  have  such  an 
operation,  then,  even  though  the  words  of  such  statute,  taken 
strictly  and  grammatically,  would  repeal  the  former  act,  the 
courts  of  law  judging  for  the  benefit  of  the  subject,  have  held 

made  applicable,  and  which  provide*  that  laws  not  inconsistent  with  the  Con- 
stitution shall  remain  in  force  until  repealed,  local  laws  will  continue  and  be  operative 
until  general  laws  are  enacted.  State  v.  Barbee,  3  Ind.  258.  But  see  on  this  subject, 
the  note  upon  the  constitutional  provisions  in  question ;  while  some  courts  have 
treated  it  as  directory,  others  have  regarded  it  as  imperative.  And  see  Allbye  v. 
State,  10  Ohio,  N.  S.  588,  and  Cahoon  v.  Commonwealth,  20  Gratt.  733,  for  cases  in 
which  constitutional  provisions  were  held  not  to  operate  as  a  repeal  of  inconsistent 
laws  until  legislation  was  had  under  them. 

The  revised  ordinances  of  a  town  which  in  terms  repeal  all  ordinances  "  re- 
pugnant to  the  provisions  of  the  aforesaid  ordinances,"  do  not  repeal  an  ordinance 
not  included  in  the  revision,  but  not  repugnant  thereto.  State  v.  Pollard,  6  R.  I. 
290.  A  clause  in  a  body  of  revised  statutes,  repealing  all  acts  and  parts  of  acts,  the 
subjects  of  which  are  revised,  etc.,  or  which  are  repugnant,  will  be  construed  to 
refer  to  general  acts,  and  not  to  municipal  charters  whose  provisions  may  be  in- 
consistent therewith,  unless  there  is  an  intention  manifested  to  make  the  general 
rules  of  the  revision  apply  to  such  charters.  Walworth  Co.  v.  Whitewater,  17  Wise. 
193;  Janesville  v.  Markoe,  18  Wise.  350;  Stonington,  &c.  Bank  v.  Davis,  1  McCar- 
ter  (N.  J.)  286.  A  proviso  of  a  repealed  act  falls  with  the  act  itself.  Church  v. 
Stadler,  16  Ind.  463. 

Whether  a  Legislature  can  prescribe  a  Mode  of  Repeal. — A  general  rule  adopted  by 
the  Legislature  prescribing  the  forms  and  modes  of  future  legislation,  is  repealed  pro 
tanto  by  an  act  not  complying  with  such  rule.  Wall  v.  State,  23  Ind.  150 ;  S'ate  v. 
Oskins,  28  Ind.  364 ;  and  see  also,  Brightman  v.  Kirner,  22  Wise.  54.  Where  a 
general  turnpike  act  exempted  instruments  of  husbandry  (which,  by  another  statute, 
included  threshing  machines)  from  toll,  and  declared  that  its  provisions  should  ex- 
tend to  every  turnpike  act  thereafter  to  be  passed,  except  as  to  such  "  provisions, 
matters  and  things  as  shall  be  expressly  referred  to,  and  varied,  allowed,  or  repealed," 
and  a  subsequent  local  turnpike  act  imposed  a  toll  on  wagons,  and  the  interpreta- 
tion clause  thereof  declared  that  wagons  should  include  threshing  machines,  it  was 
held  that  the  provisions  of  the  general  act  were  repealed  so  far  as  the  exemption  of 
such  machines  on  the  new  turnpike  was  concerned.  Ablert  v.  Pritchard,  1  Harrison 
&  Rutherford,  274. 

One  Legislature  cannot  bind  another  to  any  mode  of  repeal.  Kellogg  v.  Oshkosh, 
14  Wise.  623 ;  and  where  a  charter  enacted  that  none  of  its  provisions  should  be 
considered  as  "  repealed  by  any  general  law  contravening  them,  unless  such  purpose 
should  be  expressly  set  forth  in  such  law,"  an  inconsistent  act,  without  such  express 
statement  of  the  intent,  was  held  a  repeal  by  implication.  Ibid, 


104  REPEAL  BY  IMPLICATION. 

that  they  ought  not  to  receive  such  a  construction."  *  It  has 
been  said  that,  even  if  there  be  negative  words  in  the  latter 
statute,  it  shall  not  be  considered  as  a  repeal  of  the  former,  pro- 
vided they  can  both  reasonably  stand  together.  So  it  was  held 
that  the  statute  1  &  2  Philip  and  Mary,  c.  10,  declaring  that  all 
trials  for  treason  should1  be  according  to  the  course  of  the  com- 
mon law,  and  not  otherwise,  did  not  work  a  repeal  of  the  stat- 
ute, 35  Henry  VIII,  c.  2,  which  authorized  trial  for  treason 
beyond  the  sea.  f 

But,  on  the  other  hand,  it  is  equally  well  settled  that  a  sub- 
sequent statute,  which  is  clearly  repugnant  to  a  prior  one,  nec- 
essarily repeals  the  former,  although  it  do  not  do  so  in  terms ; 
and  even  if  the  subsequent  statute  be  not  repugnant,  in  all  its 
provisions,  to  a  prior  one,  yet  if  the  later  statute  was  clearly 
intended  to  prescribe  the  only  rule  that  should  govern  in  the 
case  provided  for,  it  repeals  the  original  act.  Leges  posteriores, 
priores  contrarias  abrogant.%  "If  two  inconsistent  acts  be 
passed  at  different  times,  the  last,"  said  the  Master  of  the  Rolls, 
"  is  to  be  obeyed ;  and  if  obedience  cannot  be  observed  without 
derogating  from  the  first,  it  is  the  first  which  must  give  way. 
Every  act  of  Parliament  must  be  considered  with  reference  to 
the  state  of  the  law  subsisting  when  it  came  into  operation,  and 
when  it  is  to  be  applied ;  it  cannot  otherwise  be  rationally  con- 
strued. Every  act  is  made,  either  for  the  purpose  of  making  a 
change  in  the  law,  or  for  the  purpose  of  better  declaring  the 
law ;  and  its  operation  is  not  to  be  impeded  by  the  mere  fact 
that  it  is  inconsistent  with  some  previous  enactment."  | 

It  has  been  repeatedly  declared  that  every  statute  is,  by 
implication,  a  repeal  of  all  prior  statutes,  so  far  as  it  is  contrary 
and  repugnant  thereto,  and  that  without  any  repealing  clause ; 
and  on  this  principle,  when  an  act  prohibited  an  unlicensed 
person  from  selling  rum  under  a  penalty  of  twenty  dollars  for 

*  William  v.  Pritchard,  4  D.  &  E.  2 ;  Dwar-  J  The  Dean  of  Ely  v.  Bliss,  5  Beavan, 

ris,  p.  614;  Williams  v.  Williams,  4  Seld.  526;  3*74;    Reg.  v.    Inhabitants   of  St.  Edmunds, 

Lyn   v.  Wyn,  Bridgman's  Judgments,  122;  Salisbury,  2  Q.  B.  72;  Brown  v.  M'Millan,  7 

Darc/s  Case,  Cro.  Eliz.  612;  Paget  v.  Foley,  Mees.  <fe  Wels.  196;  Crisp  v.  Bunbury,  8  Bing. 

2  Bing.  N.  C.  679;  R.  v.  Pugh,  1  Dougl.  188.  394 ;  11  Rep.  632;  Rex  v.  Lumsdaine,  10  Ad. 

f  Forster's  Case,  11  Rep.  63.  &  Ellis,   160;  Rex  v.  Tooley,  3  T.   R.   69; 

j  Davies  v.  Fairbairn,  3  How.  IT.  S.  R.  Welsford  v.  Todd,  8  East,  580. 
636 ;  Dexter  and  Limerick  Plank  Road  Co.  v. 
Allen,  16  Barb.  S.  C.  R.  15. 


REPEAL   BY   IMPLICATION".  105 

each  offence,  and  a  subsequent  statute  prohibited  the  same  act 
on  pain  of  forfeiting  not  more  than  twenty  dollars  nor  less  than 
ten  dollars  for  each  offence,  the  old  statute  being  absolute  and 
imperative,  and  the  other  allowing  a  latitude  of  discretion,  it 
was  declared  that  they  were  essentially  and  substantially  incon- 
sistent, and  the  former  statute  was  held  to  be  repealed.*  So, 
in  general,  where  a  statute  imposes  a  new  penalty  for  an 
offence,  it  repeals,  by  implication,  so  much  of  a  former  statute 
as  established  a  different  penalty.  So  Lord  Mansfield  held, 
that  the  statute  5  George  I,  c.  27,  inflicting  a  fine  not  exceeding 
£100  and  three  months'  imprisonment,  for  seducing  artificers, 
was  repealed  by  a  subsequent  act,  23  George  II,  c.  13,  inflicting 
a  penalty  of  £500  and  twelve  months'  imprisonment  for  the 
same  offence.f  So,  on  the  same  principle,  a  statute  is  impliedly 
repealed  by  a  subsequent  one,  revising  the  whole  subject-mat- 
ter of  the  first.  J  And  in  the  case  of  a  statute  revising  the 
common  law,  the  implication  is  equally  strong.  So  where  an 
act  is  an  offence  at  common  law,  and  the  whole  subject  is 
revised  by  the  Legislature,  the  common  law  is  repealed.  |  So 
in  Pennsylvania,  it  has  been  said  that  when  two  statutes  are 
so  flatly  repugnant  that  both  cannot  be  executed,  and  we  are 
obliged  to  choose  between  them,  the  later  is  always  deemed  a 
repeal  of  the  earlier.  This  rule  applies  with  equal  force  to  a 
case  of  absolute  and  irreconcilable  conflict  between  different 
sections  or  parts  of  the  same  statute.  The  last  words  stand, 
and  others  which  cannot  stand  with  them  go  to  the  ground.  ^[ 

But  though  it  is  thus  clearly  settled  that  statutes  may  be 
repealed  by  implication,  and  without  any  express  words,  still 
the  leaning  of  the  courts  is  against  the  doctrine,  if  it  be  possible 
to  reconcile  the  two  acts  of  Legislature  together.  "  It  must  be 
known,"  says  Lord  Coke,  "  that  forasmuch  as  acts  of  Parliament 

*  Commonwealth   v.    Kimball,   21    Pick.          ^[  Brown  v.  County  Com.   21   Penn.   37. 

373 ;  see  Rex  v.  Cator,  4  Bur.    2026,  where  But  in  this  case  it  was  also  said,  that  when- 

Lord  Mansfield  made  a  similar  intimation.  ever  two  acts  can  be  made  to  stand  together, 

f  Rex  v.   Cator,  4  Burr.  2026 ;     Rex  v.  it  is  the  duty  of  the  court  to  give  them  full 

Davis,  Leach's  Cases,  271 ;  Nichols  v.  Squire,  effect.     And  so  the  act  of  10th  April,  1834, 

6  Pick.  168.  creating  the  county  board   of  Philadelphia 

\  Bartlett  v.   King,   12   Mass.    E.   637 ;  county,  was  held  not  to  be  repealed  by  the 

Kichols  v.  Squire,  5  Pick.  168.  '  act  of  15th  April,  1834,  relating  to  counties 

J  Commonwealth  v.  Cooley,  10  Pick.  37 ;  and  townships. 
Commonwealth  v.  Marshall,  11  Pick.  350. 


106  REPEAL  BY  IMPLICATION. 

are  established  with  such  gravity,  wisdom,  and  universal  con- 
sent of  the  whole  realm,  for  the  advancement  of  the  common- 
wealth, they  ought  not,  by  any  constrained  construction  out  of 
the  general  and  ambiguous  words  of  a  subsequent  act,  to  be 
abrogated;  sed  Jiujusmodi  statuta  tanta  solemnitate  et  prudentia 
edita  (as  Fortescue  speaks,  cap.  18,  fol  21)  ought  to  be  main- 
tained and  supported  with  a  benign  and  favorable  construc- 
tion." *  So  in  this  country,  on  the  same  principle,  it  has  been 
said  that  laws  are  presumed  to  be  passed  with  deliberation, 
and  with  full  knowledge  of-  all  existing  ones  on  the  same  sub- 
ject ;  and  it  is,  therefore,  but  reasonable  to  conclude  that  the 
Legislature,  in  passing  a  statute,  did  not  intend  to  interfere 
with  or  abrogate  any  prior  law  relating  to  the  same  matter, 
unless  the  repugnancy  between  the  two  is  irreconcilable ;  and 
hence,  a  repeal  by  implication  is  not  favored ;  on  the  contrary, 
courts  are  bound  to  uphold  the  prior  law,  if  the  two  acts  may 
well  subsist  together,  f  So,  in  Pennsylvania,  it  has  been  decided 
that  repeals  by  implication  are  not  favored ;  and  it  has  been 
declared  that  one  act  of  Assembly  is  held  to  repeal  another  by 
implication  only  in  cases  of  very  strong  repugnancy  or  irrecon- 
cilable inconsistency.  J  So  again  in  a  recent  case  in  New  York, 
it  is  said  that  the  repeal  of  a  statute  by  implication  is  not 
favored.  Unless  the  latter  statute  is  manifestly  inconsistent 
with  and  repugnant  to  the  former,  both  remain  in  force. 
Courts  are  bound  to  uphold  the  prior  law,  if  the  two  may 
subsist  together.  [  So,  too,  in  Massachusetts,  to  annul  the  prior 
statute,  the  latter  act  must  be  clearly  repugnant  to  the  former, 
and  the  implication  by  repeal  will  not  be  favored.  Where  an 
act  was  passed  in  1836,  prohibiting  the  sale  of  "  spiritous " 
liquors,  and  in  1850  an  act  was  passed  professing  to  amend  the 
prior  statute,  by  inserting  the  word  "  intoxicating  "  in  the  place 
of  the  word  "spiritous"  it  was  argued  that  the  act  of  1850 
repealed  that  of  1836 ;  but  on  the  ground  that  the  word 
"intoxicating"  includes  a  larger  class  of  cases  than  "spiritous" 

*  Dr.  Foster's  Case,  11  Rep.   63  ;  Dyer,  J  Street  v.  Commonwealth,   6  W.  &  S. 

347;  King  v.  The  Justices,  <fcc.  15  East,  377;  209;    Commonwealth  v.    Easton    Bank,    10 

Dwarris,  vol.  ii,  633.  Barr,   442 ;    Brown  v.   County  Commis.   21 

•j-  Bowen  v.  Lease,  5  Hill,  221 ;  Canal  Co.  Penn.  37. 

v.  Railroad  Co.  4  Gill  &  John.  1.  [  Williams  v.  Potter,  2  Barb.  S.  C.  R.  316. 


REPEAL  BY   IMPLICATION.  107 

that  all  spiritous  liquors  are  intoxicating,  but  all  intoxicating 
liquors  are  not  spiritous,  it  was  held  that  they  might  well 
stand  together.* 

On  the  very  opposite  of  these  general  principles,  it  has  been 
said  in  England,  with  that  deference  for  the  rights  of  the  crown 
which  we  have  already  had  occasion  to  notice,  that  clauses 
which  limit  in  any  way  the  right  of  the  sovereign  must  be  con- 
sidered as  repealed  by  subsequent  statutes,  unless  expressly 
re-en  acted,  f  But  I  believe  the  principle  has  never  been  recog- 
nized in  this  country ;  nor  do  I  understand  why  the  Govern- 
ment should  be  exempted  from  the  operation  of  general  rules 
of  law,  or  the  fair  interpretation  of  language. 

In  this  country  it  has  been  held,  that  a  statute  may  be 
repealed  by  the  abrogation  of  a  State  Constitution.  So  the 
statute  of  the  State  of  New  York,  passed  under  the  Constitution 
of  1821,  which  prohibited  the  judges  of  appellate  courts  from 
taking  part  in  the  decisions  of  causes  determined  by  them 
when  sitting  as  the  judges  of  any  other  court,  was  held  to  be 
virtually  repealed  by  the  Constitution  of  1846,  which  abrogated 
the  Constitution  of  1821. J 

Some  special  rules  may  be  here  noticed.  We  have  already 
had  occasion  to  observe  the  doctrine,  that  if  the  latter  part  of 
a  statute  be  repugnant  to  a  former  part  of  it,  the  latter  part 
shall  stand,  and,  so  far  as  it  is  repugnant,  be  a  repeal  of  the 
former  part,  because  it  was  last  agreed  to  by  the  makers  of  the 
statute.|  Questions  may  arise  as  to  whether  a  repealing  act  is 
to  operate  as  a  total,  partial,  or  temporary  repeal ;  and  it  is 
said  that  the  word  repealed  is  not  to  be  taken  in  an  absolute, 
if  it  appear  on  the  whole  act  to  be  used  in  a  limited  sense. ^f 
If  a  statute,  originally  perpetual,  be  continued  by  an  affirm- 
ative statute  for  a  limited  time,  this  does  not  amount  to  a 
repeal  of  it  at  the  end  of  that  time.**  But  when  a  statute 
absolutely  repeals  a  prior  law,  and  substitutes  other  provisions, 
to  continue  only  for  a  limited  time,  the  prior  law  does  not 

*  Commonwealth  v.  Herrick,  6  Gushing,  pany  of  Chelsea  Water  Works,  Fitzgibbons, 

465.  195  ;  Dwarris,  vol.  ii,  515  and  534;  ante,  pp. 

f  Attorney-General  v.  Newman,  1  Price,  47  and  50. 

438.  Tf  Rex  v.  Rogers,  10  East,  569  ;  Camden  v. 

±  Pierce  v.  Delamater,  1  Corns.  IT.  Anderson,  6  T.  R.  723. 

|  Attorney-General  v.  Governor  and  Com-  **  Raym.  397. 


108  EFFECTS   OF    REPEAL. 

revive  at  the  expiration  of  the  time  fixed  by  the  repealing 
law.* 

We  have  next  to  consider  the  effects  of  the  repeal  which, 
when  it  is  clear  and  absolute,  are  of  a  very  sweeping  charac- 
ter, (a)  "  The  effect  of  a  repealing  statute,"  says  a  very 

*  Warren  v.  Windle,  3  East,  205. 

(a)  Effect  of  Repeal  and  Amendment. 

Revival  of  the  Old  Law. — The  general  rule,  independent  of  any  statutory  change 
in  it,  is  that  the  repeal  of  a  repealing  statute  revives  the  original  statute.  Brinkley 
v.  Swicegood,  65  N.  C.  626 ;  James  v.  Buzzard,  1  Hemps.  259.  And  this  is  so, 
although  the  repeal  is  by  implication.  People  v.  Davis,  61  Barb.  456. 

Although  there  is  an  established  statutory  rule  of  the  State,  that  the  repeal  of 
a  repealing  act  shall  not  revive  the  original  act  first  repealed,  yet  where  a  statute 
creating  an  exception  from  a  prior  general  law  is  repealed,  that  general  law,  without 
the  exception,  becomes  again  wholly  operative.  Smith  v.  Hoyt,  14  Wise.  252. 
Where  there  is  such  a  statutory  rule  as  to  the  effect  of  repeals,  as  stated  in  the  last 
preceding  sentence,  it  applies  to  repeals  by  implication,  as  well  as  to  express  repeals. 
Stirman  v.  State,  21  Tex.  734.  There  being  a  general  statute  that  the  repeal  of  a 
repealing  act  should  not  revive  the  act  first  repealed  without  express  words,  the 
Legislature  on  one  day  passed  a  repealing  act,  and  the  next  day  passed  an  act 
supplementary  to  it,  and  excepting  certain  counties  from  its  operation,  and  it  was 
held  that  this  second  or  supplementary  act  must  be  considered  as  a  part  of  the  first 
or  repealing  act,  and  as  continuing  the  old  law  in  force  in  those  counties.  Manlove 
v.  White,  8  Cal.  376. 

A  mere  declaration  in  a  statute  that  a  certain  other  statute,  which  repealed 
specified  sections  in  a  former  act,  "  shall  not  repeal "  such  sections,  does  not  operate 
to  revive  them,  and  is  in  fact  a  nullity.  State  v.  Conkling,  19  Cal.  501. 

When  the  remedy  upon  a  contract  has  been  suspended  by  a  statute,  the  repeal  of 
that  statute  restores  the  remedy,  except  as  to  rights  which  have  become  vested  under 
the  statute  while  in  force.  Johnson  v.  Meeker,  1  Wise.  436.  When  a  statute  is 
impliedly  modified  by  a  later  statute,  upon  the  repeal  of  the  later  statute  the  implied 
modification  ceases.  Glaholm  v.  Barker,  Law  R.  1  Ch.  223. 

Effect  of  Repeal  upon  Individual  Rights. — Civil  rights  dependent  upon  a  statute, 
unless  vested,  fall  with  it ;  e.  g.,  where  a  statute  had  directed  certain  taxes  to  be 
applied,  after  collection,  to  a  particular  purpose,  and  had  appointed  commissioners 
to  disburse  the  money,  and  the  law  was  afterward  repealed,  no  contracts  having  been 
made,  nor  rights  vested  under  it.  Tivey  v.  People,  8  Mich.  128. 

Rights  of  action  or  defence  given  by  a  statute  on  grounds  of  public  policy — e.  g., 
stock  jobbing  act — are  destroyed  by  a  repeal  of  the  statute,  even  though  an  action 
is  pending.  Washburn  v.  Franklin,  35  Barb.  599.  And  mechanics'  liens  not  fully 
perfected,  fall  with  a  repeal  of  the  law.  Bailey  v.  Mason,  4  Minn.  546 ;  Dunwell  v. 
Bidwell,  8  Minn.  34.  But  where  fully  perfected,  the  liens  remain.  Streubel  v.  Mil- 
waukee, &c.  R.  R.  12  Wise.  67 ;  Gazelle  v.  Lake,  1  Oregon,  119. 

But  a  repeal  cannot  take  away  vested  rights ;  e.  g.,  where  the  State  had  by  statute 
postponed  its  lien  on  a  railroad,  to  enable  the  corporation  to  negotiate  its  bonds,  it 
cannot  by  a  repeal  affect  the  priority  of  such  bonds.  Sinking  Fund  Comm'rs  v. 
Northern  Bank,  1  Mete.  (Ky.)  174.  The  repeal  of  a  granting  act  cannot  take  away 


EFFECTS   OF  REPEAL.  109 

eminent  judge,*  "I  take  to  be  to  obliterate  the  statute  re- 
pealed as  completely  from  the  records  of  Parliament  as  if  it 

*  Tindal,  C.  J.,  in  Key  v.  Goodwin,  4  Moore  and  Payne,  841. 

titles  vested  thereunder.  Rice  v.  Railroad  Co.  1  Black,  358.  Nor  could  the  repeal 
of  a  law  allowing  substitutes  affect  rights  already  vested.  Ex  parte  Graham,  13 
Rich.  Law,  277.  And  where  the  right  to  a  payment  of  money  has  become  vested 
in  transactions  under  a  statute,  its  repeal  will  not  take  away  such  right.  Streubcl 
v.  Milwaukee,  &c.  R,  R.  12  Wise  67.  For  example,  the  right  to  half  pilotage  vested 
by  a  tender  of  service.  Steamship  Co.  v.  Joliffe,  2  Wall.  450.  Nor  is  the  time  of 
redemption  from  a  tax  sale  shortened  by  a  repeal  subsequent  to  the  sale.  Adams  v. 
Beale,  19  Iowa,  61 ;  Myers  v.  Copeland,  20  Iowa,  22.  And,  it  seems,  the  right  to 
obtain  possession  by  a  summary  process  in  force  at  the  date  of  a  lease,  is  not  taken 
away  by  a  repeal  after  the  breach.  Hoopes  v.  Meyer,  1  Nev.  433.  Nor  can  the 
repeal  of  a  general  law  for  the  formation  of  corporations  affect  corporations  already 
organized  under  it,  in  the  absence  of  a  power  reserved  in  the  original  act.  Donworth 
v.  Coolbaugh,  5  Clarke  (la.)  300.  Nor  can  the  authority  conferred  upon  a  street  con- 
tractor, to  collect  assessments  from  the  abuttors,  be  taken  away  by  repeal  after  the  con- 
tract is  entered  into.  Creighton  v.  Pragg,  21  Cal.  115.  Nor,  it  seems,  can  the  right 
to  costs,  although  the  amount  is  to  be  determined  by  the  discretion  of  the  court,  be 
taken  away  by  a  repeal  after  verdict.  Cook  v.  New  York,  &c.  Dock  Co.  1  Hilt.  (N.  Y. 
C.  P.)  556.  And  it  seems  that  a  statute  prescribing  a  new  method  of  commencing 
actions,  and  repealing  the  old  law,  will  not  abate  actions  in  which  process  has  been 
served  in  the  old  method.  Beebe  v.  O'Brien,  10  Wise.  481. 

When  a  deposition  has  been  begun,  and  a  statute  is  passed  to  the  effect  that 
witnesses  must  testify  ore  tenus,  the  deposition,  although  afterwards  completed,  cannot 
be  used.  Craneford  v.  Halsted,  20  Gratt.  211. 

Repeal  of  a  statute  of  limitations  does  not  revive  rights  already  barred.  Right 
v.  Martin,  11  Ind.  123;  Knox  v.  Cleveland,  13  Wise.  245 ;  Baldro  v.  Tolmil,  1  Ore- 
gon, 176.  Nor  does  a  repeal  give  a  right  of  action  on  a  contract  made  in  contra- 
vention of  the  statute  while  in  force.  Hathaway  v.  Moran,  44  Me.  67 ;  Gilliland 
v.  Phillips,  1  Rich.  N.  S.  152.  But  where  the  act  repealed  was  a  measure  of  public 
policy  merely,  leaving  the  moral  and  equitable  consideration  between  the  parties 
good,  it  seems  a  repeal  of  the  prohibitory  act  will  take  away  all  impediment  to 
enforcing  contracts  made  while  it  was  in  force,  e.  g.,  where  the  prohibition  was  of 
circulating  bank  notes  under  the  denomination  of  $5.  Central  Bank  v.  Empire 
Stone,  &c.  Co.  26  Barb.  23.  Or  the  stock  jobbing  act.  Washburn  v.  Franklin,  35 
Barb.  599. 

Pending  judicial  proceedings  based  upon  a  statute,  fall  to  the  ground  with  its 
repeal.  Rice  v.  Wright,  46  Miss.  679  ;  State  v.  Daley,  29  Conn.  272  ; '  Genkniger  v. 
State,  32  Penn.  St.  99;  State  v.  Cross,  4  Jones,  Law,  421 ;  Johnson  v.  Meeker,  1 
Wise.  436  (a  liquor  law).  Even  if  the  repeal  be  after  conviction  and  an  appeal 
therefrom.  Keller  v.  State,  12  Md.  322 ;  Wall  v.  State,  18  Tex.  682 ;  Hartung  v. 
People,  22  N.  Y.  95;  see  also  Ex  parte  McArdle,  7  Wall.  506;  State  v.  O'Connor,  13 
La.  Ann.  486.  And  the  same  is  true  of  actions  for  penalties.  Mouras  v.  The  A.  C. 
Brewer,  17  La.  Ann.  82;  Gaul  v.  Brown,  53  Me.  496.  Courts  will  take  judicial 
notice  of  the  repeal.  State  v.  Henderson,  13  La.  Ann.  489. 

That  a  repeal  of  a  license  law  will  not  affect  the  validity  of  licenses  under  it  for 
their  unexpired  term,  but  will  prevent  prosecution  for  a  violation  of  their  pro- 


110  EFFECTS  OF  REPEAL. 

had  never  passed,  and  that  it  must  be  considered  as  a  law  that 
never  existed,  except  for  the  purpose  of  those  actions  or  suits 

visions.  See  State  v.  Andrews,  28  Mo.  14,  19.  The  repeal  of  a  usury  law  relieves 
from  the  forfeitures  provided  for  by  it.  Wood  v.  Kennedy,  19  Ind.  68.  And  such 
repeal  affects  pending  suits.  Welch  v.  Wadsworth,  30  Conn.  149. 

Where  one  statute  refers  to  another  for  rules  of  procedure,  and  the  statute  thus 
referred  to  is  repealed,  it  remains  in  force  so  far  as  to  govern  the  proceedings  under 
the  statute  making  the  reference.  Spring,  &c.  Works  v.  San  Francisco,  22  Cal.  434. 
The  repeal  of  a  statute  carries  with  it  a  supplemental  statute  so  dependent  upon  the 
former,  that  it  cannot  be  enforced  without  such  original  act.  Ellison  v.  Jackson,  12 
Cal.  542.  Although  the  general  statutes  enact  that  in  case  of  a  legal  conviction, 
where  no  punishment  is  provided  by  statute,  the  court  shall  award  such  sentence  as 
is  conformable  to  the  common  practice  and  usage,  according  to  the  nature  of  the 
offence ;  it  seems  this  cannot  apply  to  a  case  where  a  section  declaring  the  punish- 
ment has  been  repealed.  Commonwealth  v.  McDonough,  13  Allen,  581. 

Unconstitutional  Repealing  Statutes. — If  an  express  repealing  clause  is  contained 
in  a  statute  which  is  unconstitutional,  it  seems  the  repealing  clause  will  not  take 
effect.  People  v.  Tiphaine,  3  Parker  Cr.  241 ;  but, per  contra,  Meshmaier  v.  State,  11 
Ind.  482.  But  if  the  repealing  clause  is  only  of  acts  and  parts  of  acts  inconsistent 
with  the  provisions  of  the  statute,  which  is  itself  unconstitutional  and  void,  it  has 
no  effect.  Shepardson  v.  Milwaukee,  &c.  R.  R.  6  Wise.  605;  State  v.  La  Crosse,  11 
Wise.  51 ;  Campan  v.  Detroit,  14  Mich.  276;  Childs  v.  Shower,  18  Iowa,  261.  And 
the  same  was  held  of  a  similar  repealing  clause  contained  in  a  statute  void  in  part, 
but  the  void  portion  being  the  only  one  that  was  inconsistent  with  any  prior  acts. 
Devoy  v.  New  York,  35  Barb.  264;  Harbeck  v.  New  York,  10  Bosw.  366. 

Amendatory  Statutes. — Where  an  amendatory  act  sets  forth  the  entire  sections 
amended,  they  are  to  be  construed  as  introduced  into  the  place  of  the  repealed 
sections,  and  in  view  of  the  provisions  of  the  original  act  after  such  introduction. 
McKibben  v.  Lester,  9  Ohio,  N.  S.  627.  Thus,  the  words  in  the  amendatory  act 
"  under  the  limitations  herein  provided,"  must  be  held  to  apply  to  the  limitations 
of  the  original  act  after  the  amended  sections  are  in  place.  Ibid. ;  and  see  also 
Conrad  v.  Nail,  24  Mich.  275.  And  where,  after  the  amendment  of  section  6, 
"'  section  6  "  is  repealed,  it  is  the  amended  section  which  has  taken  the  place  of  the 
original  one.  Greer  v.  State,  22  Tex.  588.  Qucere,  whether  such  repeal  would 
restore  the  original  section  ?  See  Tallamon  v.  Cardenas,  14  La.  Ann.  514.  The 
amendment  of  a  statute  by  a  subsequent  one  operates,  as  to  all  acts  done  subse- 
quently thereto,  as  though  the  amendment  had  been  a  part  of  the  original  statute. 
Holbrook  v.  Nichol,  36  111.  161.  Where  a  new  proviso  was  substituted  for  an  old 
one  in  nearly  the  same  terms,  it  was  held  that  the  new  proviso  and  the  original 
statute  must  be  read  as  one  act,  i.  e.,  as  though  the  proviso  had  originally  been  in 
the  amended  form.  Queen  v.  St.  Giles,  3  E.  &  E.  224.  But  where  an  act  passed  in 
1865-6  appropriated  25  per  cent,  of  the  revenue  for  school  purposes,  with  the 
proviso  that  it  should  not  be  applied  until  the  year  1867,  a  repeal  of  the  proviso 
was  held  not  to  make  the  act  applicable  to  the  revenue  of  1866.  State  v.  Auditor, 
41  Mo.  25. 

An  amendment  of  a  section  which  provides  that  it  "  shall  hereafter  read  as 
follows,"  repeals  entirely  the  original  section.  State  v.  Andrews,  20  Tex.  230 ;  but 
see  Moore  v.  Mausert,  5  Lans.  173 ;  also,  Ely  v.  Holton,  15  N.  Y.  595. 

Where  an  act  increasing  the  salaries  of  certain  officers  who  were  in.the  receipt 


EFFECTS  OF  REPEAL.  Ill 

which  were  commenced,  prosecuted,  and  concluded  while  it 
was  an  existing  law."*  Upon  this  principle,  the  repeal  of  a 
statute  puts  an  end  to  all  prosecutions  under  the  statute  re- 
pealed, and  to  all  proceedings  growing  out  of  it  pending  at  the 
time  of  the  repeal.  There  can  be  no  legal  conviction,  unless  the 
act  is  contrary  to  law  at  the  time  it  is  committed ;  nor  can 
there  be  a  judgment,  unless  the  law  is  in  force  at  the  time  of 
the  indictment  and  of  the  judgment.  Hence,  a  repealing  law  is 
sometimes  made  to  operate  prospectively,  and  a  saving  clause  is 
inserted  to  prevent  the  operation  of  the  repeal,  and  continuing 
the  repealed  law  in  force  as  to  all  pending  proceedings  and 
prosecutions.f  So  in  the  Supreme  Court  of  the  United  States, 
it  has  been  held  that  the  repeal  of  a  statute  giving  a  penalty, 
puts  an  end  to  all  actions  pending  for  penalties  under  the  act, 
at  the  time  of  the  passage  of  the  repealing  statute.  J  So  in  the 
Circuit  Court  of  the  United  States,  where  a  man  was  indicted 
for  perjury  under  the  bankrupt  law,  which  had  been  repealed 
before  indictment,  Washington,  J.,  said,  "  Every  offence  for 
which  a  man  is  indicted  must  be  laid  against  some  law,  and  it 
must  be  shown  to  come  within  it,  and  the  law  must  be  subsist- 
ing. If  the  Legislature  has  ceased  to  consider  the  act  in  the 
light  of  an  offence,  the  purposes  of  punishment  are  no  longer  to 
be  answered."|  So  the  repeal  of  a  law  imposing  a  penalty, 
though  after  conviction,  arrests  the  judgment.3^  And  the  same 

*  See  also,  in  England,  as  to  effect  of  re-  shall,  11  Pick.  350 ;  see  also,  Butler  v.  Palmer, 

peal  of  bankrupt  laws.     Surtees  v.  Ellison,  9  1  Hill,  324. 

B.  &  C.  750;  Maggs  v.   Hunt,  4  Bing.  212;         \  Yeaton  v.  United  States,  5  Cranch,  281 ; 

and  Kay  v.  Gordon,  6  Bing.  576.  Schooner  Rachel  v.  United  States,  6  Cranch, 

f  Miller's  Case,  1  W.  HI.  451 ;  Rex  v.  Jus-  329;  Norris  v.  Crocker,  13  How.  429;  United 

tices  of  London,  3  Burr.  1456  ;  Commonwealth  States  v.  Passmore,  4  Dall.  372. 
v.  Cooley,  10  Pick.  37;  Commonwealth  v.  Mar-         ||  Anon.  1  Wash.  C.  C.  R.  84. 

\  Common  wealth  v.  Duane,  1  Binn.  601,608. 

of  fees  was  such  as  to  repeal  by  implication  prior  statutes  on  the  subject,  but  it 
provided  in  substance  that  such  statutes  should  remain  in  force  as  to  the  receipt  of 
the  fees,  but  that  they  should  be  paid  into  the  State  Treasury,  instead,  of  being 
retained  by  the  officers,  this  was  held  to  be  an  attempt  to  amend  an  act,  without 
setting  it  out  as  required  by  the  Constitution,  and  so  void.  Dodd  v.  State,  18 
Ind.  56. 

No  Legislature  can  lay  down  for  a  subsequent  one  a  binding  rule  as  to  how 
statutes  shall  be  amended.  Morgan  v.  Smith,  4  Minn.  104.  In  construing  an 
amendatory  act,  the  old  law,  the  mischief  arising  under  it,  and  the  remedy  which 
the  new  law  may  be  supposed  to  provide,  should  be  considered.  Maus  v.  Logans- 
port,  &c.  R.  R.  27  111.  77;  People  v.  Greer,  43  111.  213. 


112  EFFECTS   OF   REPEAL. 

rule  applies  to  all  proceedings,  whether  civil  or  criminal,  going 
on  by  virtue  of  a  statute  at  the  time  of  its  repeal.  So  if  a  stat- 
ute confers  jurisdiction  in  civil  cases,  and  though  suits  may  be 
instituted  and  be  pending  at  the  time  of  the  repeal,  the  juris- 
diction is  gone,  and  with  it  the  whole  proceeding  falls  to  the 
ground.*  So  the  repeal  of  an  act  authorizing  a  course  of  pro- 
ceeding by  a  public  officer,  invalidates  the  proceedings,  if  un- 
finished, at  whatever  stage  they  had  arrived,  f  Thus,  in  Penn- 
sylvania, where  an  act  was  passed  authorizing  the  opening  of  a 
street  in  Pittsburgh,  and  providing  for  the  assessment  of  dam- 
ages ;  it  was  held,  that  the  repeal  of  the  act  before  the  street 
was  opened,  rendered  void  all  proceedings  taken,  and  that  the 
parties  in  whose  favor  damages  had  been  assessed  could  not 
recover  the  compensation  reported  in  their  favor.  J  So  in  New 
York,  in  May,  1837,  a  law  was  passed  authorizing  mortgage 
debtors  to  redeem  their  property  sold  under  foreclosure  decrees, 
within  one  year  from  the  date  of  the  sale.  In  April,  1838,  an 
act  was  passed  repealing  the  act  of  1837,  to  take  effect  in  No- 
vember, 1838.  In  a  case  where  the  sale  took  place  in  Decem- 
ber, 1837,  before  the  repealing  law  had  passed,  it  was  held  that 
no  redemption  could  take  place  after  the  time  fixed  for  the  act 
to  go  into  effect ;  that  the  right  of  redemption  was  a  mere  in- 
choate right,  and  necessarily  destroyed  by  the  abrogation  of  the 
statute  which  conferred  it.| 

In  connection  with  this  subject  we  may  observe,  that  an  act 
declared  illegal  by  statute  is  not  made  good  by  a  subsequent 
repeal  of  the  statute,  if  it  was  originally  illegal.4^  And  so,  the 
repeal  of  a  prohibitory  act  does  not  give  validity  to  acts  which 
were  invalid  under  the  operation  of  the  prohibitory  act  re- 
pealed. Thus  in  New  York,  the  Revised  Statutes  declared  that 
no  person,  unauthorized  by  law,  who  should  practice  physic  or 
surgery  for  any  fee  or  reward,  should  be  capable  of  bringing 
suit  for  such  fees.  In  1844  this  was  repealed.  An  action  was 
brought  by  an  unlicensed  practitioner,  in  1845,  to  recover  com- 

*  Stoever  v.  Immell,  1  "Watts,  258 ;  But-          \  Hampton  v.  Commonwealth,   7   Harris 
ler  v.  Palmer,  1  Hill,  324.  (Penn.),  329. 

f  Williams  v.  County  Commissioners,  35  |  Butler  v.  Palmer,  1  Hill,  324. 

Maine,  p.  345.  1"  Jaques  v.  Withy,  1  H.  Bl.  65;  Roby  v. 

West,  4  New  Hampshire  R.  285. 


EFFECTS  OF  REPEAL.  113 

pensation  for  services  rendered  in  1840,  prior  to  the  repealing 
act.  It  was  held  that  the  repeal  of  the  previous  prohibitory 
laws  had  no  effect  on  cases  which  arose  before  the  passage  of 
that  act.* 

It  will  be  noticed,  that  the  operation  of  the  general  rule  is 
to  give  repealing  statutes  a  very  retroactive  effect.  In  regard 
to  criminal  matters,  this  is  perhaps  unobjectionable ;  but  in  re- 
gard to  civil  rights,  the  case  is  often  very  different.  Trouble 
and  expense  may  have  been  incurred  ;  suits  may  have  been  in- 
stituted; but  the  effect  of  a  retrospective  construction  of  re- 
pealing statutes  is  entirely  to  derange  the  plans  and  defeat  the 
arrangements  of  parties  who  have  proceeded  on  the  faith  of  the 
antecedent  legislation.  Efforts  have  been  made  to  resist  these 

o 

results,  and  certain  exceptions  have  been  made  to  this  retroact- 
ive application.  The  first  is  that  where  a  right  in  the  nature 
of  a  contract  has  vested  under  the  original  statute,  then  the  re- 
peal does  not  disturb  it.f  And,  in  this  country,  this  principle 
is  carried  out  and  firmly  established  by  the  clause  in  the  Con- 
stitution of  the  United  States,  that  no  State  can  pass  any  law 
impairing  the  obligation  of  contracts ;  to  which  we  shall  have 
occasion  more  particularly  to  refer,  when  we  come  to  consider 
the  subject  of  the  restrictions  imposed  upon  State  Legislatures 
by  the  federal  charter.  An  unfortunate  distinction  has  been 
drawn  by  the  highest  of  the  federal  tribunals,  between  the  ob- 
ligation of  a  contract  and  its  remedy.  It  has  been  repeatedly 
regretted ;  but  the  State  courts  have  adopted  it,  and  it  is  now 
too  late,  perhaps,  to  hope  for  its  abandonment.  J  What  relates 
to  the  remedy  is  understood  to  be  at  the  mercy  of  legislation, 
but  the  obligation  of  contracts  is  covered  by  the  a?gis  of  the 

*  Bailey  v.  Mogg,  4  Denio,  60.  ter  can  be  impaired  without  producing  the 

f  Fletcher  v.  Peck,  6  ('ranch,  87 ;  Gill-  same  consequence  to  the  former."     Cowcn,  J.( 

more  v.  Shooter's  Ex'or,  2  Mod.  310;    Couch  in  Butler  v.  Palmer,  1   Hill,  324.     Mr.  Chan- 

?.  t.  v.  Jeffries,  4  Burr.  2460-2 ;  Churchill  v.  cellor  Kent  has  said,  "  Oh.  J.  Marshall,  in 
'rense,  2  Moore  <fe  Payne,  415  ;  5  Bing.  177,  iSturges  v.  Crowninshield,  4  Wheaton,  200, 
S.  O. ;  Terrington  v.  Har^reaves,  3  Moore  &  207,  spoke  on  this  subject  in  a  general  and 
Payne,  137,  143;  5  Bing.  489  ;  S.  C.,  Butler  latitudinaryma.-.ner,  which  was  rather  hazard- 
v.  Palmer,  1  Hill,  324.  ous.  It  seems  to  me,  that  to  lessen  or  take 
£  "  Were  the  notion  res  nova,  we  might  away  from  the  extent  and  efficiency  of  the 
feel  great  difficulty  in  distinguishing  between  remedy  to  enforce  the  contract  legally  exist- 
the  obligation  of  a  contract,  and  a  remedy  ing  when  the  contract  was  made,  impairs  its 
given  by  the  law  to  enforce  it.  It  is  difficult,  value  and  obligation."  Com.  i,  p.  455,  note, 
under  the  notion  that  obligation  and  remedy  See,  too,  the  opinion  of  Mr.  Justice  Washing- 
are  essential  to  each  other,  to  see  how  the  lat-  ton,  in  Mason  v.  Haile,  12  Wheaton,  370. 

8 


114  EFFECTS  OF   REPEAL. 

federal  charter.  We  shall,  as  I  have  above  said,  have  occasion 
to  consider  this  more  fully,  when  we  coine  to  speak  of  the  Con- 
stitution of  the  United  States. 

There  is  another  class  of  cases   which   virtually  form  a 
second  exception  to  the  general  rule,  declaring,  as  we   have 
seen,  the  operation  of  repealing  statutes.     It  has  been  held  in 
many  instances  that  enactments  of  the  Legislature,  creating  new 
exceptions  or  defences,  or  modifying  previous  remedies,  shall  be 
so  construed  as  not  to  affect  rights  of  action  which  have  at- 
tached and  become  vested  under  the  original  law,  and  existing 
at  the  time  of  the  repealing  statute.*     "  We  are  of  opinion," 
said  Lord  Denman,  C.  J.,  in  a  case  of  this  kind,  "  that  the  law, 
as  it  existed  when  the  action  was  commenced,  must  decide  the 
rights  of  the  parties  to  the  suit,  unless  the  Legislature  express 
a  clear  intention  to  vary  the  relation  of  litigant  parties  to  each 
other."  f      So  in  regard  to  the  limitation  of  actions,  the  same 
learned  judge  said,  in  regard  to  a  law  changing  the  period,  that 
the  prior  law  must  control.     "  A  different  construction,  even  if 
the  words  permitted  it,  would  cause  the  greatest  hardship ;  for 
a  person  who,  as  the  law  stood  before  the  passing  of  this  act, 
was  in  ample  time  to  bring  his  ejectment,  and  recover  property 
that  undoubtedly  was  his,  would,  by  the  operation  of  the  stat- 
ute, be  suddenly  deprived  of  the  means  of  asserting  his  right, 
there  being  no  clause  for  the  postponement  of  the  operation  of 
the  statute  for  such  a  period  as  would  enable   persons  who 
would  be  otherwise  affected  by  it  to  assert  their  rights."  %     So 
in  New  York,  where  distress  for  rent  originally  existed,  as  in 
England,  it  was  made  by  statute  |  a  penal  offence  to  remove 
goods  from  the  demised  premises  for  the  purpose  of  avoiding 
the  payment  of  rent ;  a  forfeiture  being  given  to  the  landlord 
of  double  the  value  of  the  goods  removed.    In  May,  1846,  an  act 
was  passed  abolishing,  generally,  the  remedy  of  distress,  though 
not  in  terms  repealing  the  above  statute.      A  suit  brought  for 
a  violation  of  the  statute,  alleged  to  have  been  committed  in 

*  Bedford  v.   Shilling,  4   Serg.  &  Rawle,  Dwarris,  vol.  ii,   p.   542 ;     Sed  vide  contra, 

401;  Duffield  v.   Smith,  3  Id.   690-9;    But-  Freeman  v.  Moyes,  1  A.  <fe  E.  338;  Paddonv. 

ler  v.  Palmer,  1  Hill,  324.  Bartlett,  3  A.  &  E.  884;  Surtees  v.  Ellison,  9 

t  Hitchcock  v.   Way,  6  Ad.  &  Ell.  943 ;  B.  &  C.  750. 
Paddon  v.  Bartlett,  3  Ad.  <fe  Ell.  884.  J  2  R.  S.  503,  §  17,  part  in,  ch.  viii,  title  9, 

\  Doe  dem.  Evans  v.  Richards,  Q.  B.  R. ;  art.  1. 


EFFECTS  OF  REPEAL.  115 

1844,  came  on  to  be  tried  in  June,  1846;  and  it  was  suggested 
that  the  abolition  of  the  remedy  of  distress  necessarily  carried 
with  it  the  provision  as  to  the  removal  of  goods,  and  on  the 
general  doctrine  which  we  have  above  stated,  that  the  penalty 
was  gone.  But  it  was  said  that  there  were  no  express  words 
of  repeal,  that  the  moment  that  the  offence  was  committed  the 
penalty  became  a  debt  or  duty  vested  in  the  plaintiff,*  and 
that  the  action  would  still  lie.f  So  it  is  intimated  in  a  recent 
case  in  New  York,  that  the  Legislature  cannot  take  away  a 
right  of  appeal  which  has  already  attached.^ 

It  has  been  attempted  to  reconcile  this  class  of  cases  with  the 
others,  which  we  have  heretofore  in  this  connection  considered, 
on  the  ground  that  they  contain  no  express  words  of  repeal ;  [ 
but  it  being  settled  that  repeals  may  be  as  clearly  made  by 
implication  as  by  positive  words,  that  position  becomes  unten- 
able. They  are,  in  fact,  far  more  defensible  on  the  general  doc- 
trine that  no  statute  should  ever  be  permitted  to  have  a  retro- 
active effect,  a  rule  which  we  shall  have  occasion  to  consider  in 
the  next  chapter.  Indeed,  no  attention  can  be  paid  to  our 
statutory  law  without  observing  the  mischiefs  resulting  from 
ill-considered  legislation,  violent  and  sweeping  innovation,  or 
the  hasty  repeal  of  previous  enactments.  The  inconveniences 
consequent  upon  retroactive  statutes  are  often  of  the  most 
serious  character,  and  cannot  be  too  fpeatf^Mly  igaEn^d  out,  nor 
too  often  insisted  on.1T  tf^  OF  -\\\v 

I!  .  i 

*  The  Company  of  Cutlers  in  Yorkshire  v.  of  rartiaffleik,  «ve«a«*n^n*SJr  Bd^rd  Cok» 

Ruslin,  Skinner,  363;  Grosset  v.  Ogilvic,  5  expresses  it)  with  provisoes  and  additions ; 

Brown,  P.  C.  527;  College  of  Physicians  v.  and  i^qny  jfciflie$,<w armitKf^npp'enned  or  cor- 

Hanison,  9  Barn.  &  Cres.  524.  rected  bv  men  of  none  or  very  little  judgment 

f  Palmer  v.  Conly,  4  Denio,  374;  a.  c.  on  in  law;"  amTTie  goes  oh  to  quote  further 

appeal,  2  Corns.  182.  from  Coke,  as  to  the  evils  resulting  from  the 

{Grover  v.  Coon,  1  Coma.  536.  ignorance  and  incompetency  of  the  law- 
Butler  v.  Palmer,  1  Hill,  324.  .  makers. — Blackxtone,Cm.,  Introductory  Lec- 
*[[  We  may,  however,  take  some  consola-  ture.  Both  Coke  and  Blatkstone,  however, 
tion  in  the  consideration  that  these  are  no  were  devotees  to  the  common  law.  But  the 
modern  evils,  nor  confined  to  our  country,  complaint  has  been  repeated,  in  England, 
Those  who  deplore  the  haste  with  which  our  down  to  our  time.  "  The  same  cause,"  says  a 
statutes  are  drawn,  the  inaccuracies  which  writer  tn  the  Law  Review  for  August,  1850, 
they  often  present,  and  the  injustice  they  too  "  which  has  produced  bad  books  upon  En- 
frequently  work,  may  take  comfort  in  the  glish  law  (the  discontinuance  of  regular  aca- 
words  of  Blackstone:  "  To  say  the  truth,  al-  demical  institutions  in  our  terms  of  court) 
most  all  the  niceties,  intricacies,  and  delays,  has  produced  bad  statutes."  "  The  real  evil," 
which  have  sometimes  disgraced  the  English  said  the  Lord  Chief  Justice,  in  debate  in  the 
as  well  as  other  courts  of  justice,  owe  their  House  of  Lords,  July  9,  1850,  "under  the 
original  not  to  the  common  law  itself,  but  to  present  system,  was,  that  nine-tenths  of  the 
innovations  that  have  been  made  in  it  by  acts  time  of  the  judges  was  taken  up  in  endeavor- 


116  REPEAL  OF  A  REPEALING  STATUTE. 

The  question  next  presents  itself  as  to  the  effect  of  the  re- 
peal of  a  repealing  statute.  The  rule  of  the  common  law  is, 
that  the  unqualified  repeal  of  a  repealing  statute,  substituting 
no  other  provisions  in  place  of  those  repealed,  revives  the  orig- 
inal statute;  and  this  is  generally  received  in  this  country.* 
The  principle  has  been  applied  in  New  York  to  the  resolutions 
of  school  districts  to  lay  taxes.f  In  Massachusetts,  also,  it  has 
been  held,  that  the  repeal  of  a  repealing  statute  revives  the 
original  act ;  and  that  the  doctrine  is  the  same  where  the  repeal 
is  effected  by  implication  only.  J  But  in  Ohio,  ||  and  Illinois,^" 
•statutes  have  been  passed  abolishing  the  rule  of  the  common 
law.**  If  a  repealing  statute  and  part  of  the  original  statute 
•be  repealed  by  a  subsequent  act,  the  residue  of  the  original 
^statute  is  revived.ff 

We  have  thus  far  considered  the  attributes  and  incidents  of 
-statutes,  so  far  as  they  do  not  depend  on  any  ambiguity  of  their 
own  language.  We  are  now  better  prepared  to  consider  those 
•cases  where  it  is  necessary  to  call  in  the  aid  of  judicial  construc- 
tion or  interpretation.  But  before  quitting  this  branch  of  our 
subject,  I  permit  myself  a  short  digression  in  order  to  take  no- 
tice of  the  relation  of  statutes  to  the  law  of  copyright.  It  was 
originally  considered,  in  England,  that  the  crown  had  a  prerog- 
ative copyright  in  the  Bible  and  Common  Prayer  Book,  the 
Statutes  of  the  realm,  the  Almanacs,  and  the  Latin  grammar; 
and  the  sovereign  granted,  by  letters  patent,  the  exclusive  right 
of  printing  these  works.  In  regard  to  the  statutes,  the  doctrine 
has  been  vindicated  on  the  ground  of  the  necessity  of  some 
responsibility  for  correct  printing,  and  because  the  laws  can 
only  be  obtained  from  the  rolls  of  Parliament,  which  are  within 

5ng  to  reduce  to  intelligibility  the  ill-digested  Livingston,    6    "Wend.    626;    Bradstreet    v. 

legislation  of  the  it  Lordships'  House."  "  Clarke.  4  Wend.  211 ;  and  Lansing  v.  Caswell, 

In  New  York,  the  Revisors  of  1830  pre-  4  Paige,  519. 

pared  a  very  careful  general  repealing  act;  *  Case  of  the  Bishops,  12  Co.  7;  2  Inst. 

3   R.    8.   130.  act  of  December  10,  1828;  in  &86;  Doe  v.  Naylor,  2  Blackford,  32;  M'Nair 

which  it  is  enacted  by —  v.   Ragland,   1   Dev.  &  Bat.  Eq.  Cases,  525 ; 

§  5.  "  That  the  repeal   of  any  statutory  Wheeler  v.  Roberts,  7  Co\ven,  536 ;  Finch  v. 

provision  by  this  act,  shall  not  affect  any  act  M' Do  wall,  7  Cowen,   537;  Commonwealth  v. 

done,  or  ri^ht  accrued  or  established,  or  any  Churchill,  2  Met.  118. 

proceeding,  suit,  or  prosecution,  had  or  com-  f  Gale  v.  Mead,  4  Hill,  109. 

menced  in  any  civil  case  previous  to  the  time  i  Hastings  v.  Aiken,  1  Gray,  165. 

when  such  repeal  shall  take  effect;  but  every  |  14th  February,  1809. 

.such  act,  right,  and  proceeding  shall  remain  aa  *f  19th  January,  1826. 

•valid  and  effectual  as, if  the  provision  so  re-  **  1  Kent  Com.  466. 

pealed  had  remained  in  force."     See,  also,  the  f  f  Doe  dem.  Broughton  T.  Gully,  9  B.  A 

.-^subsequent  sections  of  the  act,  and  People  v.  C.  344,  854. 


COPYRIGHT  IN  STATUTES.  117 

the  authority  of  the  crown.  Originally,  the  copies  of  the  stat- 
utes of  the  kingdom  were  transmitted  to  the  sheriff,  who  caused 
them  to  be  publicly  read  in  the  county  courts.  When  the  in- 
troduction of  printing  produced  an  increased  demand  for  the 
laws,  and  at  the  same  time  facilitated  the  supply,  the  laws  were 
published  by  the  patentee  of  the  crown;  and  this  exclusive 
right  was  not  only  repeatedly  recognized  in  the  earlier  cases, 
but  carried  so  far  as  to  embrace  the  Reports,  Year  Books,  and 
Eolle's  Abridgment.  These  latter  pretensions  have  been 
abandoned,  but  the  exclusive  title  of  the  crown  to  the  publica- 
tion of  the  statutes  has  been  sustained ;  and  the  sole  right  to 
print  the  laws  in  England,  is  now  held  to  be  vested  in  the  sov- 
ereign and  his  patentee,  who  shares  it,  however,  in  consequence 
of  certain  ancient  grants,  with  the  universities  of  Oxford  and 
Cambridge.*  But  it  seems  to  be  settled,  that  the  statutes  may 
be  printed  by  others  than  those  claiming  under  a  patent,  pro- 
vided the  publication  is  accompanied  by  bona  fide  notes,  f 

Of  the  English  doctrine  of  prerogative  copyright,  there  is,  it 
is  believed,  no  trace  in  this  country.  The  laws,  whether  of  the 
Union  or  of  the  States,  may  be  published  by  any  one ;  though, 
generally,  the  editor  of  a  newspaper  is  appointed  by  the  Gov- 
ernment as  State  printer,  who  publishes  the  first  regular  copy 
of  the  federal  or  State  statutes.  In  regard  to  the  decisions  of 
the  Supreme  Court  of  the  United  States,  it  has  been  determined 
that,  under  the  act  of  Congress  by  which  an  official  reporter  is  ap- 
pointed, there  can  be  no  copyright  in  the  written  opinions  of  the 
court ;  but  that  the  reporter  may  have  a  copyright  in  his  own 
marginal  notes,  and  his  arrangement  of  the  arguments  of  counsel.  \ 
Several  of  the  State  Constitutions  contain  provisions  on  this 
subject.  In  California  the  Constitution  declares,  that,  "  the  Leg- 
islature shall  provide  for  the  speedy  publication  of  all  statute 
laws,  and  of  such  judicial  decisions  as  it  may  deem  expedient ; 
and  all  laws  and  judicial  decisions  shall  be  free  for  publication 
by  any  person."  |  The  Constitution  of  Iowa  provides,^  that 
"  no  law  of  the  General  Assembly,  of  a  public  nature,  shall  take 

*  Ba-kett  v.  The  University  of  Cambridge,  \  Wheaton  v.  Peters,  8  Peters,  591,  668; 

1  "W.   Black.   105,   121;  Baskett  v.  Cunning-  Gray  v.  Russell,  1  Story,  11. 
bam  et  a/.  1  Black.  370;  Manners  v.  Blair,  3  ||  Constitution,  Art.  vi.  §  12. 

Bligh.  S'Jl,  402  ;  Curtis  on  Copyright,  1 1 6, 128.  $  Art.  iv,  §  27. 

"•)•  Maugham  on  Copyright,  p.  106;  2  Evan's 
Statutes,  19,  note  11.     _. 


118  PUBLICATION  OF   JUDICIAL   DECISIONS. 

effect  until  the  same  shall  be  published  and  circulated  in  the 
several  counties  of  the  State,  by  authority.  If  the  General 
Assembly  shall  deem  any  law  of  immediate  importance,  they 
may  provide  that  the  same  shall  take  effect  by  publication  in 
newspapers  in  the  State."  The  Constitution  of  Wisconsin  de- 
clares,* that  "the  Legislature  shall  provide,  by  law,  for  the 
speedy  publication  of  all  statute  laws,  and  of  such  judicial 
decisions,  made  within  the  State,  as  may  be  deemed  expedient. 
And  no  general  law  shall  be  in  force  until  published."  The 
Constitution  of  Michigan  declares,f  that  "  the  Legislature  shall 
not  establish  a  State  paper.  Every  newspaper  in  the  State, 
which  shall  publish  all  the  general  laws  of  a  session  within 
forty  days  of  their  passage,  shall  be  entitled  to  receive  a  sum 
not  exceeding  fifteen  dollars  therefor.  The  Legislature  shall 
provide  for  the  speedy  publication  of  all  laws  of  a  public  na- 
ture, and  of  such  judicial  decisions  as  it  may  deem  expedient. 
All  laws  and  judicial  decisions  shall  be  free  for  publication  for 
any  person."  In  New  York,  the  Constitution  provides,  J  that 
"the  Legislature  shall  provide  for  the  speedy  publication  of  all 
statute  laws,  and  of  such  judicial  decisions  as  it  may  deem 
expedient.  And  all  laws  and  judicial  decisions  shall  be  free 
for  publication  by  any  person." 

The  greater  the  publicity  that  is  given  to  the  statute  law, 
of  course,  the  better ;  but,  notwithstanding  these  constitutional 
enactments  of  so  many  of  the  States,  it  appears  to  me  not  diffi- 
cult to  prove  that  our  governments  should  retain  some  control 
over  the  publication  of  the  judicial  decisions  of  their  courts. 
The  publication  of  decisions  in  individual  cases  may,  indeed, 
with  propriety,  be  left  free ;  but  the  publication  of  collections 
of  reports  is  a  matter  too  immediately  connected  with  legisla- 
tion to  be  left  without  any  supervision  whatever.  As  it  is  now, 
we  are,  in  some  of  the  States,  flooded  with  reports  of  cases,  a 
great  many  of  which  are  entirely  trivial,  or  only  tend  to  increase 
the  uncertainty  and  perplexity  of  the  law,  and  greatly  to  aug- 
ment the  labor  of  all  those  concerned  in  the  administration  of 
justice.  Our  reports  are  our  law,  and  the  publication  of  reports 
is,  in  fact,  the  enactment  of  laws. 

*  Art.  \il,  §  21.  f  Art.  iv,  §§  35  and  36.  J  Art.  Ti,  §  22. 


CHAPTER     V. 

OF   THE  BOUNDARIES   OF  LEGISLATIVE  AND   JUDICIAL   POWER. 

Division  of  Legislative  and  Judicial  Functions  in  England. — Bills  of  Attainder. — 
Division  in  this  Country. — Disputed  Power  of  Judiciary,  Independently  of  In- 
terpretation and  Constitutional  Limitation. —What  is  a  Law? — Power  of  the 
State  Legislatures  Examined. — Retrospective  Laws. — Result  of  the  Examination. 
— Judicial  Power  of  Construing  Doubtful  Provisions  of  Written  Law. — History 
of  its  Exercisa  in  England. — In  France. — Present  Condition  of  the  Law  on  the 
Subject. — Power  of  the  Judiciary  to  Enforce  Constitutional  Restrictions. 

HAVING  endeavored,  in  the  preceding  pages,  to  give  a  gen- 
eral idea  of  the  sources  of  our  jurisprudence,  of  the  classifica- 
tion of  laws,  and  of  their  various  parts  and  incidents,  we  now 
approach  the  subject  of  the  construction  of  statutes  in  doubtful 
cases.  But  some  preliminary  considerations  still  present  them- 
selves. Before  entering  on  the  details  of  interpretation,  it  is 
indispensable  to  have  as  correct  an  idea  as  is  practicable  of  the 
division  of  power  in  the  political  systems  which  derive  their 
origin  from  the  great  English  sources ;  in  other  words,  to  un- 
derstand, if  possible,  the  precise  boundaries  of  the  legislative, 
and  judicial  functions.*  The  questions  which  we  are  now 
about  to  consider  have  no  place  in  absolutely  despotic  govern- 
ments ;  where  all  power  is  centered  in  a  single  hand,  there  now, 
as  under  the  absolute  forms  of  the  later  Roman  government, 
the  will  of  the  sovereign  makes,  applies,  modifies,  and  interprets 
the  law :  quod  principi  placet,  legis  habet  vigorem.  The  Em- 
peror Justinian,  in  a  rescript  to  his  prefect,  Demosthenes,  uses 
this  language :  "  We  declare  the  imperial  construction  of  laws, 
whether  made  on  petition  or  in  suits,  or  in  any  way  whatever, 
to  be  absolute  and  final.  For  if  the  sovereign  alone  can  make 
laws,  he  alone  should  interpret  them ;  why  else,  when  questions 

*  Part  of  Mr.  Pwarris*  eleventh  chapter,  seems  to  me  that  a  correct  notion  of  the  divis- 

pp.  694  to  712,  is  de-voted  to  a  very  intelligent  ion  of  power  should  precede  the  consideration 

treatment  of  this  subject.     "  The  boundaries  of  of  the  exercise  of  the  power.     This  part  of 

legislation  and  of  judicial  interpretation  xouffht  Mr.  Dwarris'  eleventh  chapter  is  reprinted  by 

to  be  ascertained."    He  puts  it,  however,  after  Mr.  Smith,  and  forms  his  tenth  chapter  on 

the  discussion  of  the  rules  of  construction.     It  Legislation  and  Judicial  Interpretation. 


120  DIVISION   OF  POWER  1ST    ENGLAND. 

have  arisen  in  litigated  controversies,  have  they  been  brought 
to  us  ?  and  why,  too,  have  judicial  doubts  reached  our  ears,  if 
interpretation  does  not  proceed  from  us  alone  ?  Who,  indeed, 
is  competent  to  solve  the  enigmas  of  the  law,  except  he  to  whom 
alone  the  power  of  legislation  is  conceded  ?  These  absurd  cav- 
ilings  are,  therefore,  to  cease,  and  the  emperor  to  be  regarded 
the  only  interpreter,  as  he  is  the  only  maker  of  laws."  * 
Under  a  system  of  government  which  breathes  this  spirit,  all 
rules  of  interpretation,  indeed,  disappear.  The  questions  upon 
the  consideration  of  which  we  are  now  entering,  can  only  pre- 
sent themselves  under  those  forms  of  government  the  effort  of 

O 

which  is  to  establish  liberty  by  regulating  the  exercise  of 
power,  f  The  first  step  in  this  regulation  consists  in  the  divis- 
ion of  authority;  and  just  in  proportion  to  the  restraints  im- 
posed upon  absolute  and  arbitrary  acts  of  government  by  the 
careful  distribution  of  authority,  just  in  that  proportion  does 
the  science  of  jurisprudence  acquire  form  and  certainty;  just  in 
that  proportion  do  the  law  and  its  ministers  rise  in  influence 
and  importance. 

It  is  familiar  to  the  student  of  history  that,  from  an  early 
period,  the  functions  of  the  English  government  have  been, 
like  those  of  our  own,  distributed  between  the  legislative,  the 
judicial,  and  the  executive  branches  of  the  system ;  out  of  this 
division  arise  the  questions  that  we  now  proceed  to  consider. £ 

*  Dejtnimus,  autem,  omnem   impcralorum  •)•  Terrce  populi  omnes  ad  aquilonem  posill, 

If  gum  interpret  atioiieiii,  xivf.  in  preclbus,  sive  in  libertaleni   quamdam  spirant.  —  Bodin  de  Rei- 

judiciis,  sive  alia  quocumqne  modo  factam,  ra.-  pub.  Lib.  i,  cap.  viii,  p.  117;  ed.  1591. 

tarn  el  indubitatam  Imberi.     Si  cniin  in  prce-  ^  We  are  to  recollect,  says  Mr.  Grote,  that 

genti  leges  condere  noli   imperatori   concessum  the  division  of  powers  into  legislative,  execu- 

est,  et  ligcs  interprctari  solo  dignum  imperio  tive,  and  judicial,  and  especially  of  the  two 

ease  oportet;  cur  autem  fx  sw/gexlionibns  pro-  latter,  is  quite  of  modern  origin.     The  nrchon 

ceru'H,  si  dubitatio  in.  litibus  oriatiir,  et  sese  iton  of  Athens  was  a  judge  as  well  as  an  adminis- 

esse  idoneos  vel  sufficientes  ad  decislonem  litis  trator.     The  Roman  kings  and  the  consuls, 

iUi,existiment,adnosdecurratur.  et  qunre  outncs  before  the  appointment  of  the  prretors,  sat  as 

ambiguitates  jndicium,   quas   ex  legibus  oriri  magistrates,  as  well  as  ruled  as  executive  offi- 

evenit,  aures  acciphint  nostrce,  si  non  a  tiobis  cers ;  and,  in  modern  Europe,  the  same  con- 

interpre'atio  mera  procedit  ?     Vel  quis  lec/um  fusion  of  powers  is  to  be  found. — History  of 

venigmnta  nolvere,  ct  omnibus  aperire  idontus  Greece,  vol.  v,  ch.  xlvi,  pp.  477  and  478. 

esse  videbitur,  nixi  is  cui  soli  legislatorem  esse  It  would  be  curious  accurately  to  investi- 

concesxnm  r.xt?    Exfilusis,  itaque,  his  ridiculosis  gate  the  results  of  the  division.     The  com- 

tmbigvitatibttt,  tarn   conditor  quam  inlerpres  munity  has  doubtless  gained ;  but  has  not  the 

legum   solus   imperator  juste   cxixtimabitur. —  individual  lost  ?      Were  not  the  Roman  or 

Cod.  de  Legibus,  Lib.  i,  Tit.  xiv,  §  12.      Such  Grecian  public  men,  who  alternately  conducted 

was  the  language  that  the  master  of  the  an-  every  branch  of  affairs,  more  accomplished 

cient  world  could,  with  impunity,  make  use  and  complete  personages  than  our  moderns, 

of.     Christendom  now  happily  offers  no  par-  subdivided  as  we  are,  into  generals,  admirals, 

allel,  unless,  indeed,  it  be  Russia.  ministers,  diplomatists,  and  orators  ? 


DIVISION   OF  POWER  IN   ENGLAND.  121 

The  separation  of  the  functions  of  government,  in  the  mother 
country,  has,  however,  been  the  result  of  a  long  struggle,  waged 
for  centuries,  with  various  fortunes,  between  its  different  -  com- 
ponent parts.  So  little  was  the  importance  of  the  distribution 
at  first  understood,  that,  originally,  the  English  Legislature 
habitually  exercised  judicial  powers.  Cases  of  first  impression, 
matters  presenting  serious  doubt  or  difficulty,  were  adjourned 
by  the  courts  into  Parliament,  there  to  be  resolved  and  decided* 
So  says  Bracton :  Si  aliqua  nova  et  inconsueta  emerserint,  et  quce 
nunquam  prius  evenerint,  et  obscurum  et  difficile  sit  eorum  judi- 
cium,  tune  ponantur  judicia  in  respective  usque  ad  magnam 
curiam,  ut  ibi per  consilium  curies  terminentur.^  But  this  ju- 
risdiction has  long  since  disappeared,  and  the  only  remains  of 
the  exercise  of  judicial  power  by  Parliament  consist  in  its  ca- 
pacity to  pass  bills  of  attainder,  and  of  pains  and  penalties. 
These,  says  Mr.  Dwarris,^  "are  instances  of  the  transcendent 
power  of  the  Legislature  to  punish  offences  otherwise  than 
according  to  pre-ordained  law,  by  a  discretionary  severity  in 
lieu  of  an  invariable  standard.  They  furnish  an  instance  of  the 
Legislature  quitting  its  proper  province  and  superseding  the 
judicial  functions,  and  that,  in  order  to  punish  the  transgression 
of  laws  which  they  have  neglected  to  propound.  In  punishing 
criminals  by  bill,  the  king,  lords,  and  commons  are  accusers  and 
judges,  charging,  convicting,  and  condemning  uno  flatu.  *  *  * 

*  Bracton,  Lib.  i,  ch.  2 ;  Coke,  2  Inst.  408;  primary  intent  was  the  administration  of  tlie 

Dwarris,  695;  and  ante,  p.  18.  law.     The   mode,   by  which   the   change   of 

f  The  second  chapter  of  Petyts'  Jus  Par-  functions  of  the  select  bodies  was  effected,  can 
Uamentarium,  a  curious  work,  to  which  I  shall  be  traced  with  sufficient  distinctness.  They 
hereafter  again  refer,  is  entitled,  "Several  were  the  judges,  as  well  as  the  witiiissas,  both 
authorities  to  prove  that,  by  the  ancient  laws  of  law  and  fact;  for  the  law  itself,  unwritten 
and  customs  of  England,  when  any  case  of  and  unrecorded,  living  in  custom  and  usage, 
difficulty  did  happen  to  arise  in  Westminster  and  not  gathered  from  volumes  or  parchments, 
Kill,  the  judges  adjourned  such  cases  propter  was  a  .fact  to  be  ascertained  like  any  other, 
d/fficnltatem,  usque  ad  proximum  Paiiia-  from  the  testimony  of  the  judges  or  repre- 
?ncntum."  Indeed,  we  learn  from  one  of  the  sentatives  of  the  community.  Language, 
most  sagacious,  as  well  as  one  of  the  most  pro-  therefore,  which  is  very  inaccurate,  if  consid- 
found  among  the  students  of  the  early  institu-  ered  with  reference  to  the  jurisprudence  of 
tions  of  the  mother  country,  that  the  primary  modern  England,  maybe  applie  I  with  pro- 
functions  of  the  representative  bodies  of  the  priety  to  the  Noeemda  or  the  Echevirn;  and 
middle  ages  were  to  administer  or  execute  hence  the  acquisition  of  their  legislative  pow- 
their  law.  Their  legislative  powers  were  in-  ers.  Called  in  first  for  the  purpose  of  deliver- 
troduced  in  a  secondary  stage.  Sir  Francis  ing  the  law,  they  easily  accepted  the  duty  of 
Palgrave  says,  "It,  must  be  recollected,  how-  suggesting  any  amendments  which  it  required; 
ever,  that  the  sphere  of  action  anciently  be-  a  task  for  which  they  were  well  fitted,  both 
longing  to  popular  representation,  was  not  by  station  and  by  knowledge." — Palgrave's 
that  to  which  we  are  now  accustomed.  Leg-  Enplixk  Commonwealth,  vol.  i,  ch.  3,  p.  127. 
islation  was  an.  accidental  incident ;  their  \  Page  254. 


122  JUDICIAL    POWER. 

This  is  the  only  familiar  instance  of  the  Legislature  quitting  its 
proper  province  and  superseding  the  judicial  functions."  * 

In  this  country,  this  vicious  exception  has  been  cut  up  by 
the  root ;  our  State  Legislatures  are  prohibited,  by  the  Consti- 
tution of  the  United  States,  from  using  the  terrible  weapon  of 
attainder;  and  all  our  Constitutions,  State  and  federal,  declare 
the  distinction  to  be  observed  between  the  three  great  powers 
of  government,  without,  however,  as  we  shall  see  hereafter, 
making  any  very  precise  or  careful  definition  of  the  nature  or 
extent  of  these  powers. 

It  is,  then,  as  a  general  rule,  equally  true  of  England  and 
of  the  United  States,  that  while  the  law-making  power  is  ex- 
clusively confided  to  one  branch  of  the  Government,  that  depart- 
ment neither  construes  nor  enforces  its  own  acts.  The  enact- 
ment of  laws  belongs  to  the  Legislature,  their  construction  and 
application  to  the  judiciary,  the  enforcement  to  the  executive. 
The  first  point,  then,  that  solicits  our  attention  is  to  ascertain  if 
practicable,  with  precision,  the  boundaries  that  separate  the 
legislative  from  the  judicial  functions. 

In  our  system  there  are  two  certain  and  unquestioned 
checks  on  legislative  power,  the  application  of  both  of  which 
is  placed  in  the  hands  of  the  judiciary.  The  first  limitation  of 
legislative  power  arises  from  the  power  of  construction  vested 
in  the  courts,  and  is  applied  to  written  law  of  every  kind  of 
which  the  language  is  ambiguous  or  contradictory.  The  second 
limitation,  and  one  peculiar  to  this  country,  consists  of  the 
constitutional  restrictions  imposed  on  the  Legislature  by  the 
people,  and  the  enforcement  of  which,  as  we  shall  hereafter 
see,  is  confided  to  the  judiciary. 

The  subject,  therefore,  naturally  resolves  itself  into  two 
heads : 

First.  The  judicial  power  over  acts  of  the  Legislature, 
independently  of  any  constitutional  restraints  on  legislative 
action. 

Second.  The  judicial  power  as  used  to  apply  and  enforce 
constitutional  restrictions. 

First.  The  judicial  power  over  acts  of  the  Legislature,  inde- 

*  Dwarris,  Part  i,  p.  264,  and  Part  ii,  p.  712. 


JUDICIAL    POWER.  123 

pendently  of  any  constitutional  restraints  on  legislative  action. — 
In  examining  this  subject,  it  is  necessary,  first,  to  consider 
whether  the  power  of  the  judiciary,  in  any  case,  goes  beyond 
that  of  construction  or  interpretation,  and  the  enforcement  of 
constitutional  restraints ;  whether,  in  any  instance  of  heedless, 
improper,  unjust,  or  immoral  legislation,  where  no  doubt  exists 
either  as  to  the  meaning  of  the  enactment,  or  the  intention  of 
the  Legislature,  where  no  question  either  of  constitutional  law 
or  interpretation  arises, — whether  the  courts  can,  then,  on  any 
other  ground,  interpose  to  arrest  or  nullify  the  action  of  the 
Legislature. 

This  discussion  necessarily  involves  the  question  of  the 
absolute  or  supreme  authority  of  the  Legislature,  in  cases 
where  it  is  not  fettered  by  constitutional  impediments ;  and  is 
one  of  much  interest.  It  has  been  frequently  examined  in 
various  points  of  view,  and  by  writers  of  great  authority ; 
some  contending  for  the  absolute  supremacy  of  the  Legislature, 
others  for  the  superior  authority  of  the  courts  as  competent  to 
declare  and  enforce  the  doctrines  of  natural  justice.  Much 
analogous  decision  has  also  been  had  as  to  the  true  source  of 
government,  the  nature  of  its  origin,  and  the  mode  in  which 
its  functions  should  be  exercised — the  rights  of  man  in  a  state 
of  nature,  and  the  power  of  society  to  abridge  those  rights. 
For  those  who  are  curious  in  abstract  speculations  of  this  kind, 
the  works  of  Locke,  Hooker,  Domat,  Grotius,  Burlamaqui, 
Puffenclorf,*  Woodeson,  Hall,  Paley,  and  other  writers  of  this 
class,  may  be  consulted  with  interest. 

Mr.  Locke  thus  defines  the  limits  of  the  legislative  power : 
"  These  are  the  bounds  which  the  trust  that  is  put  in  them  by 
the  society  and  the  law  of  God  and  nature,  have  set  to  the 
legislative  power  of  any  commonwealth,  in  all  forms  of  govern- 
ment: 

"First.  They  are  to  govern  by  promulgated,  established 
laws,  not  to  be  varied  in  established  crses,  but  to  have  one 
rule  for  rich  and  poor,  for  the  favored  at  court  and  the  country- 
men at  plough. 

*  Copious    citations    from   these  authors    will  be   found   in   the   7th   chapter  of  Mr. 

Smith's  work  on  Statutes. 


124  JUDICIAL    POWER. 

"  Second.  These  laws,  also,  ought  to  be  designed  ultimately 
for  the  good  of  the  people. 

"  Third.  They  must  not  raise  taxes  on  the  property  of  the 
people  without  the  consent  of  the  people,  given  by  themselves 
or  their  deputies. 

"Fourth.  The  Legislature  neither  must  nor  can  transfer  the 
power  of  making  laws  to  anybody  else,  or  place  it  anywhere 
but  where  the  people  have."  * 

But  discussions  of  this  kind  throw  little  light  on  the 
question  now  before  us.  The  great  writers  of  the  two  last 
centuries,  of  the  class  to  which  Mr.  Locke  belongs,  were  bold 
and  adventurous  pioneers  in  paths  in  which  we  now  securely 
and  familiarly  tread.  The  truths  that  they  elaborately  argued, 
are  our  axioms;  and  the  profound  disquisitions  which  have 
rendered  their  names  immortal,  tend  but  little  to  solve  the 
novel  and  complex  questions  which  our  age  has  called  into 
being.  The  precise  question  for  our  consideration  is  whether, 
under  those  governments  which,  like  the  English  and  American, 
profess  to  divide  the  powers  of  the  great  machine  of  govern- 
ment, to  give  the  legislative  functions  to  one  and  judicial  to 
another, — whether  under  these  systems  the  judiciary  can  arrest 
the  operations  of  the  legislative  branch,  on  the  sole  ground  that 
they  are  repugnant  to  natural  justice  or  morality.  The  subject 
of  the  retroactive  effect  of  statutes  will  be  separately  discussed. 
And,  first,  let  us  see  how  the  doctrine  stands  in  the  mother 
country. 

It  has  been  there  contended,  that  there  are  certain  funda- 
mental principles  of  right  and  justice  which  even  parliamentary 
power  cannot  with  impunity  infringe  or  disregard ;  and  that  if 
the  Legislature  contemns  them  and  passes  acts  in  violation  of 
them,  it  is  the  duty  of  the  judiciary  to  declare  such  acts  null 
and  void.  This  principle  was  laid  down  in  England,  and  at  an 
early  period,  by  persons  of  high  authority.  Day  sued  Savadge, 
in  trespass ;  the  defendant  justified,  as  collector  of  the  city  of 
London,  and  alleged  that  the  goods  were  subject  to  be  dis- 
trained for  wharfage,  and  that  he  had  thus  taken  them.  The 

O     / 

*  Locke  on  Civil  Government,  ed.  of  1769,     vol.   ii,   p.   273,  Book  ii,   cap.   xi;   Of  the 

Extent  of  the  Legislative  Power. 


PARLIAMENTARY  SUPREMACY.  125 

plaintiff  replied,  that  lie  was  a  freeman  of  the  city  of  London ; 
and  that,  as  such  freeman,  he  was  by  custom  of  the  city, 
exempt  from  the  payment  of  taxes;  the  defendant  rejoined, 
denying  the  custom,  and  averring  that  whenever  a  custom  of 
the  city  of  London  came  in  issue,  it  was  a  custom  to  refer  it  to 
the  mayor,  <fec.,  to  certify  as  to  the  alleged  custom ;  and  prayed 
a  writ  to  issue  to  obtain  such  certificate.  The  plaintiff  insisted 
that  the  case  should  be  heard  by  a  jury,  on  the  ground  that 
the  custom  alleged  for  the  trial  by  certificate,  was  against  law 
and  common  reason;  and  on  demurrer,  judgment  was  given 
for  the  plaintiff,  on  this  among  other  grounds;  that  it  was 
against  right  and  justice  and  against  natural  equity,  to  allow 
the  mayor,  <fea,  their  certificate,  when  they  are  to  try  and  judge 
their  own  cause ;  and  this  language  was  used :  "  By  that  that 
hath  been  said,  it  appears  that  though,  in  pleading,  it  were 
confessed  that  the  custom  of  certificate  of  the  customs  of 
London  is  confirmed  by  Parliament,  yet  it  made  no  change  in 
this  case,  both  because  it  is  none  of  the  customs  intended,  and 
because  even  an  act  of  Parliament  made  against  naturall 
equitie — as,  to  make  a  man  judge  in  his  own  case — is  void  in 
itself;  for  jura  naturae  sunt  immutabilia,  and  they  are  leges 
legum"  *  So  again,  where  a  physician  was  arrested  for  a  fine 
imposed  by  the  College  of  Doctors,  Lord  Coke  said,  "The 
censors  cannot  be  judges,  ministers,  and  parties;  judges  to  give 
sentence  or  judgment,  ministers  to  make  summons,  and  parties 
to  have  the  moiety  of  the  forfeiture ;  quia  aliquis  non  debet 
esse  judex  in  propria  causa  /  imo,  iniquum  est  aliquem  SUOB 
rei  essejudicem.  And  it  appears,  by  our  books,  that  in  many 
cases  the  common  law  will  control  acts  of  Parliament,  and 
sometimes  adjudge  them  to  be  utterly  void ;  for  when  an  act 
of  Parliament  is  against  common  right  and  reason,  or  repug- 
nant or  impossible  to  be  performed,  the  common  law  controls 
it  and  adjudges  such  act  to  be  void."  And  Lord  Holt,  to  the 
dismay,  says  Mr.  Dwarris,  "  of  all  mere  lawyers,  manfully 
expressed  his  opinion,  that  the  observation  of  Lord  Coke  was 
not  extravagant,  but  was  a  very  reasonable  and  true  saying."  f 

*  Day  v.  Savage,  Hobart,  85;  Dr.  Bon-          f  City  of  London  T.  Wood,  12  Mod.  669 ; 
ham's  Case,  Rep.  part  viii,  p.  118.  Dwarris,  p.  480.     Lord  Ellesmerc,  in  his  ob- 


126  PARLIAMENTARY   SUPREMACY. 

These  early  cases  are  replete  with  the  spirit  of  liberty ;  but 
they  do  not  seem  to  be  sustained,  in  England,  by  the  language 
of  modern  authority.  The  English  Parliaments  have  been  the 
chief,  bulwarks  of  English  liberty,*  and  the  leading  aim  of  lib- 
eral minds  there  has  been  to  magnify  their  power  and  authority. 
Coke,  himself,  says,f  "That  the  power  and  jurisdiction  of  Par- 
liament is  so  transcendent  and  absolute,  that  it  cannot  be  con- 
sidered, either  for  causes  or  persons,  within  any  bounds ; "  and, 
says  Blackstone,  "  It  hath  sovereign  and  uncontrollable  author- 
ity in  making,  confining,  enlarging,  restraining,  abrogating,  re- 
pealing, revising,  and  expounding  of  laws,  covering  matters  of 
all  possible  denominations,  ecclesiastical  or  temporal,  civil, 
military,  maritime,  or  criminal ;  this  being  the  place  where  that 
absolute  despotic  power,  which  must  in  all  governments  reside 
somewhere,  is  intended  by  the  Constitution  of  these  kingdoms." 
*  *  "  So  Ions:  as  the  English  Constitution  lasts,  we  may  ven- 
ture to  affirm  that  the  power  of  Parliament  is  absolute  and 
without  control."  J  "There  is  no  court,"  he  says  again,  |  "that 
has  power  to  defeat  the  intent  of  the  Legislature,  when  couched  in 
such  evident  and  express  words  as  to  leave  no  doubt  whether  it 
was  the  intent  of  the  Legislature  or  no."  "Absolute  power," 
says  Mr.  Dwarris,^"  "  must  be  placed  somewhere,  and  to  it  im- 
plicit obedience  must  be  paid.  It  can  nowhere  be  so  safely 
placed  as  in  the  hands  of  those^who  frame  the  laws,  though  the 
laws  they  establish  may  sometimes  be  pernicious,  opposed  to 
morality,  and,  as  we  can  collecHt,  to  the  divine  will  as  meas- 
ured by  the  laws  of  God,  which  must  be  the  ultimate  test ; 
however  laws  may  be  unjust,  but  they  will  still  be  obligatory." 

serrations  on  Coke's  Reports,  denounces  the  They  are  limitations  upon  the  power  of  the 

opinion  with  great  severity.    Dwarris,  p.  481.  crown,  and  not  upon  that  of  the  Parliament. 

As  to  parliamentary  omnipotence,  Lord  Holt  *     *     It  is  an  historical  truth,  that  the  strug- 

has  quaintly  said,  "that  it  may  do  several  gle  there  has  constantly  been,  to  put  the  real 

things  that  look  pretty  odd  ;  "  it  can  make  or  pretended  prerogatives  of  the  crown  under 

Malta  in  Europe,  and   can  make  a  woman  a  restraint;  sometimes  by  the  barons,  as  in  the 

mayor  or  a  justice  of  the  peace;  but  it  cannot  time  of  the  great  charter ;  sometimes  by  the 

change  the  laws  of  nature  so  as  to  make  a  judges,  as  in  the   time  of  Lord  Coke ;    and 

woman  a  man,  or  a  man  a  woman.    2  Jon.  12;  sometimes  by  the  Parliament,  and  especially 

fctephen  Elec.  L.  p.  110  ;  Dwarris,  p.  523.  the  House  of"  Commons,  as  in  the  times  of  the 

*  Mr.  Justice  Brown  has  put  this  well,  in  great  rebellion,  and  the  act  for  the  settlement 

the  recent  case  of  The  People  v.  Berber-rich  of  the  succession,  in  1688." 
A  Toynbee,  11   Howard  Pr.  R.  318.      "The  f  4  Inst.  36. 

provisions  of  the  great  charter,  and  the  acts  1  Bl.  Com.  Book  i,  ch.  2. 

of  laler  times  for  the  protection  of  life,  liberty,  (  Introd.  §  310. 

and  property,  are  statutory  regulations  which  ^f  Page  483. 

Parliament  may  repeal  or  modify  at  pleasure. 


LEGISLATIVE  POWER.  127 

He  suggests  only  two  limitations :  first,  that  all  laws  which 
attempt  to  bind  future  Parliaments  are,  ipso  facto,  void ;  *  and 
secondly,  that  if  any  provision  of  a  statute  conflicts  with  the 
law  of  God  and  nature,  the  law  itself  will  be  respected,  but  the 
vicious  part  will  be  deemed  excepted  out  of  the  statute.     He 
says,  "  The  English  lawyers  adopt  a  more  cautious  and  a  very 
characteristic   mode   of  proceeding.      They   do   not   inculcate 
implicit  obedience  to  a  law  which  leads  to  absurd  consequences, 
or  to  an  infraction  of  the  natural  or  divine  law;  neither  do 
they  proclaim  the  law  itself  (which  may  be  immoral,  but  can- 
not be  illegal)  of  no  validity,  and  null  and  void.     They  only 
hold  it  inapplicable,  and  declare  that  the  particular  case  is  ex- 
cepted out  of  the  statute."  f   For  this  position  Mr.  Dwarris  cites 
no  more  recent  authority  than  a  dictum  of  Lord  Coke ;  £  nor  can 
I  reconcile  it  with  his  previous  reasoning.     The  distinction  is, 
I  believe,  one  of  a  metaphysical  and  not  of  a  practical  charac- 
ter ;  and  I  apprehend  that  no  modern  case  can  be  found  where 
the  English  judiciary  have  attempted  to  question  the  supremacy 
of  Parliament.     Mr.  Dwarris,  himself,  closes  by  saying, |  "The 
general  and  received  doctrine  certainly  is,  that  an  act  of  Parlia- 
ment, of  which  the  terms  are  explicit  and  the  meaning  plain, 
cannot  be  questioned,  or  its  authority  controlled  in  any  court 
of  justice."     In  the  recent  discussiou  which  took  place  in  the 
English  courts,  on  the  subject  of  the  privilege  of  the  House  of 
Commons,  the  house  printer  having  been  sued  for  an  alleged 
libel,  and  pleading  in  defence  the  orders  and  privileges  of  the 
house,  though  the  Court  of  King's  Bench  denied  the  validity 
of  the  plea,  the  absolute  power  of  Parliament  was  admitted. 
"Parliament"  said  Lord  Penman,  " is  said  to  be  supreme ;  I 
most  fully  acknowledge  its  supremacy."  *f     It  is  on  this  princi- 
ple too,  that  it  is  understood  that  private  acts  of  Parliament  are 
upheld  as  a  common  mode  of  assurance.** 

In  this  country,  however,  a  disposition  has  been  manifested, 
and  by  high  authority,  to  adhere  to  the  doctrine  of  the  earlier 

*  Dwarris,  p.  479;  Jenk.  Cent.  27.  253  ;  also,  see  Mr.  Justice  Coleridge's  opinion 

f  Part  ii,  pages  484  and  623.  in  the  same  case,  11  Ad.  &  Ell.  253. 

t  2  Inst.  25  ;  2  Inst.  84 ;  Dwarris,  624.  **  2  Bl.  Com.    344 ;    2  Kent  Com.  448 ; 

I  Page  484.  Powers  v.  Bergen,  2  Seld.  358. 

\  Stockdale  T.  Hansard,  11  Ad.  &   Ell. 


128  LEGISLATIVE  POWER. 

English  cases  which  we  have  cited,  to  deny  the  existence  of  any 
despotic  or  arbitrary  authority  in  the  Legislature,  and  to  assert 
an  inherent  power  in  the  judiciary,  independently  of  constitu- 
tional provisions,  to  annul  a  legislative  enactment  considered 
by  them  to  be  contrary  to  the  fundamental  principles  of  natural 
justice  or  morality.  It  will  be  useful  to  refer  to  some  of  the 
cases.  The  clause  in  the  Constitution  of  the  United  States, 
Art.  5,  of  Amendments,  that  private  property  shall  not  be 
taken  for  public  use  without  just  compensation,  relates  only  to 
the  power  of  the  federal  Government,  and  operates  as  a  restraint 
on  that  Government  alone.  And  no  similar  provision  was  in- 
troduced into  the  Constitution  of  the  State  of  New  York  till 
the  adoption  of  the  Constitution  of  1821 ;  but  in  a  case  decided 
by  the  Supreme  Court  of  that  State,  before  the  adoption  of  that 
Constitution,  where  the  canal  commissioners  had  been  author- 
ized to  take  land,  but  no  provision  had  been  made  for  compen- 
sation, the  court  said  that  the  constitutional  provision  was 
merely  declaratory  of  a  great  and  fundamental  principle  of 
government,  and  that  any  law  violating  that  principle  would 
be  deemed  a  nullity,  as  against  natural  right  and  justice.  This 
case  was  reversed  in  the  Court  of  Errors  on  various  grounds, 
•but  in  doing  so,  they  said,  "  This  equitable  and  constitutional 
right  to  compensation,  undoubtedly  imposes  it  as  an  absolute 
duty  on  the  Legislature  to  make  provision  for  compensation, 
whenever  they  authorize  an  interference  with  private  right."  * 
In  the  same  State,  Mr.  Chancellor  Walworth  has  said  :  f 

*  Rogers  v.  Bradshaw,  20  J.  R.  735.  Lan-  erty  for  private  use,  and  argues  that  this  does 
guage  a  good  deal  to  the  same  effect  was  not  fall  within  the  phrase  "  legislative  pow- 
used  in  the  People  v.  Platt,  17  J.  R.  195;  er."  He  then  proceeds  to  say,  "But  the 
but  that  case  turned  more  properly  on  the  ap-  question  does  not  necessarily  turn  on  the  SRC- 
plicalion  of  the  prohibitory  clause  in  the  Con-  tion  granting  legislative  power;"  and  the 
stitution  of  the  United  States,  restraining  the  main  burthen  of  his  argument  is  to  show  that 
States  from  passing  any  law  impairing  the  the  net  in  question  violated  those  provisions 
obligation  of  contracts.  The  opinion  of  Mr.  of  the  law  which  guarantee  to  the  citizen,  in 
Justice  Bronson  in  a  familiar  case  in  the  State  all  questions  affecting  his  rights,  the  protec- 
of  New  York,  relating  to  private  roads,  Taylor  tion  of  the  "  law  of  the  land,"  and  "  due  pro- 
v.  Porter,  4  Hill,  140,  is  sometimes  referred  to  cess  of  law."  The  case  has  often  been  relied 
ns  sanctioning  the  idea,  of  there  being  other  on  as  claiming  for  the  judiciary  a  general  con- 
restraints  to  be  found  in  our  Constitutions  trol  over  the  morality  or  justice  of  acts  of 
besides  those  which  their  letter  contains ;  but  legislation.  It  does  no  such  thing.  It  is  only 
it  is  no  authority  for  any  such  inference,  a  clear,  accurate,  and  sound  exposition  of  ex- 
That  accurate  lawyer,  as  will  be  seen  when  press  constitutional  provisions.  The  case  is 
we  come  to  analyze  the  case  more  closely,  cited  with  approbation  in  Powers  v.  Bergen, 
puts  his  decision  entirely  on  the  express  2  Seld.  p.  358. 

terms  of  the  Constitution  ;  he  first  shows  that  •{•  Varick  v.  Smith,  5  Paige,  137. 

the  act  authorizes  the  taking  of  private  prop- 


LEGISLATIVE    POWER.  129 

"  The  principle  upon  which  forced  sales  of  private  property  were  compelled 
by  the  civil  law  for  the  public  good,  were  certainly  as  extended  as  any  Govern- 
ment can  ever  claim  consistently  with  the  private  rights  of  its  citizens.  And  it 
is  not  pretended  that  under  the  arbitrary  government  of  the  Roman  emperors, 
it  was  lawful  or  justifiable  for  the  sovereign  to  take  the  property  of  one  citizen 
and  give  it  to  another,  where  the  public  interest  was  not  concerned  in  such 
transfer.  Perhaps  in  England,  where  the  Parliament  is  said  to  be  omnipotent, 
so  far  as  the  exercise  of  mere  human  power  is  concerned,  there  may  be  no 
remedy  for  such  an  abuse  of  power  where  it  is  by  a  concurrent  act  of  three 
estates  of  the  realm.  But  in  a  State  which  is  governed  by  a  written  Constitu- 
tion like  ours,  if  the  Legislature  should  so  far  forget  its  duty  and  the  natural 
rights  of  an  individual,  as  to  take  his  private  property  and  transfer  it  to  an- 
other, where  there  was  no  foundation  for  a  pretence  that  the  public  was  to  be 
benefited  thereby,  I  should  not  hesitate  to  declare  such  an  abuse  of  the  right  of 
eminent  domain  was  an  infringement  of  the  spirit  of  the  Constitution,  and, 
therefore,  not  within  the  general  powers  delegated  by  the  people  to  the  Legis- 
lature." 

In  a  recent  case  in  New  York,  Mr.  Justice  Barculo  reviewed 
the  whole  subject,  and  came  to  the  conclusion,  independent  of 
any  constitutional  restriction,  that  the  power  of  the  Legislature 
was  not  supreme,  and  that  upon  principle,  as  well  as  upon 
authority,  a  legislative  act,  whether  it  be  a  positive  enactment 
or  a  repealing  statute,  which  takes  away  the  vested  rights  of 
property  of  an  individual  for  any  purpose  (except  where  prop- 
erty is  taken  for  public  use  and  upon  a  just  compensation),  is 
to  be  adjudged  invalid,  as  being  above  the  power  and  beyond 
the  scope  of  legislative  authority.*  And  the  same  learned 
judge,  in  a  subsequent  case,  declared  that  in  such  cases  the 
rights  of  parties  "  rested  not  merely  upon  the  Constitution,  but 
upon  the  great  principles  of  eternal  justice,  which  lie  at  the 
foundation  of  all  free  Governments."  f 

In  another  case  in  New  York,  where  land  was  devised  to 
trustees  for  the  use  of  the  testator's  daughter  for  life,  with  re- 
mainder in  fee  to  her  issue  living  at  her  decease,  and  for  want 
of  such  issue  to  all  the  grandchildren  of  the  testator  then  living, 
and  during  the  life  of  the  daughter  a  statute  was  passed  author- 
izing the  trustees  to  sell  the  lands  to  pay  certain  charges,  and 
to  invest  the  surplus,  <fec.,  it  was  held — no  necessity  being  re- 
cited in  the  statute,  nor  appearing  by  proof  aliunde — that  the 

*  People  v.  Supervisors  of  Westchester,  4          f  Benson  v.  Mayor  of  New  York,  10  Bark 
Barb.  64,  74.  223. 

9 


130  LEGISLATIVE  POWER. 

act  was  void  as  being  an  unauthorized  interference  with  private 
property.  And  Mr.  Justice  Jewett,  delivering  the  judgment  of 
the  Court  of  Appeals,  said,*  "  Here  the  sovereign  and  absolute 
power  resides  in  the  people,  and  the  Legislature  can  only  exer- 
cise such  powers  as  have  been  delegated  to  it.  The  right  of 
eminent  domain  or  inherent  sovereign  power,  gives  the  Legisla- 
ture the  control  of  private  property  for  public  uses,  and  only 
for  such  uses ;  it  follows  that  if  the  Legislature  should  pass  an 
act  to  take  private  property  for  a  purpose  not  of  public  nature, 
— as,  if  it  should  provide  through  certain  forms  to  be  observed, 
to  take  the  property  of  one  and  give  it  (or  sell  it,  which  is  the 
same  thing  in  principle)  to  another,  or  if  it  should  vacate  a 
grant  of  property  under  the  pretext  of  some  public  use, — such 
cases  would  be  gross  abuses  of  the  discretion  of  the  Legislature, 
and  fraudulent  attacks  on  private  rights,  and  the  law  would 
clearly  be  unconstitutional  and  void."f 

So,  says  Mr.  Justice  Strong,  in  the  same  State,  "  I  am  un- 
willing to  admit  that  there  is  any  despotic  power  in  any  of  our 
political  institutions.  It  is,  I  conceive,  beyond  the  power  of 
the  Legislature  to  tax  one  man,  or  the  inhabitants  of  one 
locality,  exclusively  for  the  benefit  of  another."  J 

In  the  State  of  Connecticut,  the  same  doctrine  has  been  de- 
clared. Hosmer,  J.,  dissented  from  the  opinion  of  those  who 
assert  the  omnipotence  of  the  Legislature  in  all  cases  where  the 
Constitution  has  not  imposed  an  explicit  restraint.  He  held,  if 
there  should  exist  a  case  of  direct  infraction  of  vested  rights 
too  palpable  to  be  questioned,  and  too  unjust  to  admit  of  vin- 
dication, he  could  not  avoid  considering  it  a  violation  of  the 
social  compact,  and  within  the  control  of  the  judiciary.  He 
asked  the  question,  "  If  a  law  were  made  without  any  cause,  to 

•  Powers  et  al.  v.  Bergen,  2  Seld.  358.  unconstitutional,  independently  of  constitu- 
f  The  reasoning  of  this  decision  is  not  tional  provisions.  And  the  idea  that  the  facts 
very  clear.  It  may  be  said,  however,  that  it  on  which  the  Legislature  decides  and  deter- 
indirectly  but  evidently  arrogates  to  the  mines  to  act,  must  be  set  out  in  the  act  or 
court  a  power  of  control  over  the  acts  of  the  otherwise  appear,  evidently  substitutes  the 
Legislature,  independently  of  constitutional  judicial  sense  of  discretion  and  correct  deal- 
restraint.  The  reservation  of  powers  to  the  ing  in  the  place  of  the  law-making  power  and 
people  is  a  very  doubtful  doctrine,  for  there  constitutional  enactment, 
are  no  powers  specifically  delegated  to  the  \  People  v.  Edmonds,  15  Barb.  529.  That 
Legislature  by  the  Constitution  of  the  State  courts  have  nothing  to  do  with  the  impolicy 
of  New  York.  The  case  substantially  asserts  of  statutes,  see  Leonard  v.  Wiseman,  31  Md. 
that  an  abuse  of  discretion  or  a  fraudulent  201. 
attack  on  private  rights,  may  render  an  act 


LEGISLATIVE  POWER.  131 

deprive  a  person  of  his  property,  or  to  subject  him  to  imprison- 
ment, who  would  not  question  its  legality,  or  who  would  carry 
it  into  effect?"* 

So  in  Vermont,  it  has  been  said  "  that  the  exemption  of  a 
particular  person  from  a  general  liability  by  law  attaching  to 
all  other  persons  similarly  situated,  would  be  void,  probably  as 
an  act  of  special  legislation,  upon  general  principles  of  reason 
and  justice,  like  a  particular  act  allowing  one  citizen  perpetual 
exemption  from  punishment  for  all  offences,  or  from  all  liability 
for  torts."  f  And  in  the  same  State  it  has  been  said  that,  "  alto- 
gether aside  from  any  express  provision  of  the  Constitution,  a 
statute  taking  property  without  necessity  of  a  public  character, 
or  without  compensation  in  some  form,  would  doubtless  be  re- 
garded as  entirely  without  the  just  limits  of  legislative  power."  J 
And  so  it  has  been  decided  in  North  Carolina,  | 

"  I  cannot  subscribe  to  the  omnipotence  of  a  State  Legisla- 
ture," says  Chase,  J.,  in  the  Supreme  Court  of  the  United 
States,^"  "  or  that  it  is  absolute  and  without  control,  although 
its  authority  should  not  be  expressly  restrained  by  the  Consti- 
tution or  fundamental  law  of  the  States.  *  *  *  There  are 
certain  vital  principles  in  our  free  republican  governments, 
which  will  determine  and  overrule  an  apparent  and  flagrant 
abuse  of  legislative  power,  as  to  authorize  manifest  injustice  by 
positive  law,  or  to  take  away  that  security  for  personal  liberty 
or  private  property,  for  the  protection  whereof  the  government 
was  established.  An  act  of  the  Legislature  (for  I  cannot  call 
it  a  law)  contrary  to  the  great  first  principles  of  the  social  com- 
pact, cannot  be  considered  a  rightful  exercise  of  legislative 
authority."  , 

In  the  Supreme  Court,  Mr.  'Justice  Story  has  held  this  lan- 
guage :  "  The  fundamental  maxims  of  a  free  government  seem 
to  require  that  the  rights  of  personal  liberty  and  private  prop- 
erty should  be  held  sacred.  At  least,  no  court  of  justice  in 
this  country,  would  be  warranted  in  assuming  that  the  power 
to  violate  and  disregard  them;  a  power  so  repugnant  to  the  coin- 

*  Goshen  v.  Stonington,  4  Conn.  209.  \  Hutch  v.  Vermont  Central  R.  R.  Co.  25 

f  Hatch  v.  Vermont  Central  R.  R.  Co.  25     Vermont,  49. 

Vermont  pp.  49,  61.  ||  Railroad  Co.  v.  Davis,  2  Dev.  &  Bat.  45]. 

1  Calder  v.  Bull,  3  Dall.  386. 


132  LEGISLATIVE    AND   JUDICIAL  POWER. 

mon  principles  of  justice  and  civil  liberty,  lurked  under  any 
general  grant  of  legislative  authority,  or  ought  to  "be  inferred 
from  any  general  expressions  of  the  will  of  the  people.  The 
people  ought  not  to  be  presumed  to  part  with  rights  so  vital  to 
their  security  without  very  strong  and  direct  expressions  of 
such  an  intention."  * 

It  will  be  observed  that  all  these  cases  more  or  less  directly 
affirm  the  doctrine  that  there  are  certain  restrictions  on  legisla- 
tive action,  not  to  be  found  in  the  State  Constitutions  nor  in 
that  of  the  United  States ;  that  these  restrictions  grow  out  of 
certain  great  principles  of  right  and  justice;  and  that  when 
these  principles  are  infringed,  it  is  the  duty  of  the  judiciary  to 
arrest  the  acts  of  the  law-making  power.  The  question  is  one 
full  of  the  gravest  interest. 

Before  attempting,  however,  to  test  the  reasoning  of  these 
cases,  or  to  bring  our  minds  to  a  correct  conclusion  in  regard  to 
the  serious  point  which  they  present,  it  is  necessary  first  to  con- 
sider the  precise  manner  in  which  the  demarkation  between  the 
legislative  and  judicial  functions  in  this  country  is  made.  This 
is  not  with  us,  as  in  England,  the  result  of  long  usage,  judicial 
decisions,  or  parliamentary  practice.  Here  it  is  matter  of  posi- 
tive and  written  law.  The  division  of  power  was  a  leading 
idea  in  the  American  mind  at  the  time  of  the  Revolution,  and 
all  our  State  Constitutions  bear  its  impress.  Without,  I  be- 
lieve, a  single  exception,  they  .divide  the  attributes  of  govern- 
ment into  three  great  branches,  the  executive,  the  legislative, 

O  '  C  ' 

and  the  judicial.  But,  though  the  State  Constitutions  generally 
attempt  to  declare,  with  more  or  less  accuracy,  the  powers  of 
the  executive  branch  of  the  government,  they  appear  to  make 
little  effort  to  describe  with  precision  the  character  and  func- 
tions of  either  the  legislative  or  judicial  department ;  arid  they 
confine  themselves,  in  almost  every  instance,f  to  the  mere  dec- 
laration that  the  law-making  and  judicial  powers  shall  be  kept 
separate  and  distinct;  without  endeavoring  to  define  what  is 
the  true  nature,  object,  or  scope  of  law,  or  what  the  correct 

*  Wilkinson  v.  Lcland,  2  Peters,  627.  islative   power,  but   I  think  with  no  very 

f  In  New  Hampshire,  Constitution,  Part    marked  success. 
II,  an  effort  has  been  made  to  define  the  leg- 


DIVISION    OF   POWER.  133 

> 

characteristics  of  a  judicial  proceeding.  In  a  recent  case  in 
New  York,*  it  has  been  said,  "  Written  Constitutions  not  only 
declare  of  what  the  government  shall  consist,  into  what  depart- 
ments it  shall  be  separated,  *  *  *  but  they  also  prescribe 
the  exact  confines  within  which  these  functions  shall  be  exe- 
cuted, to  what  subjects  they  may  or  may  not  extencj^  and  the 
degree  of  power,  absolute  or  limited,  which  each  separate  de- 
partment may  exert."  But  this  claims  for  our  Constitutions 
much  more  exactness  than  they  possess.  We  find  their  lan- 
guage of  a  very  vague  and  general  character,  going,  in  fact, 
little  beyond  the  mere  creation  of  the  three  great  departments 
by  name.  So  the  Constitution  of  the  United  -States  declares, 
Art.  Ill,  §  1,  "The  judicial  power  of  the  United  States  shall 
be  vested,"  &c.  So  the  Constitution  of  the  State  of  New  York 
(1821)  declares,  Art.  I,  "The  legislative  power  shall  be  vested 
in  a  Senate  and  an  Assembly ; "  Art.  Ill,  "  The  executive  power 
shall  be  vested  in  a  Governor."  The  Constitution  of  Maine 
provides,  f  "  The  powers  of  this  government  shall  be  divided 
into  three  distinct  departments,  the  legislative,  executive,  and 
judicial.  No  person  or  persons  belonging  to  one  of  these  de« 
partments  shall  exercise  any  of  the  powers  properly  belonging 
to  either  of  the  others,  except  in  the  cases  herein  expressly 
directed  and  permitted."  So  in  Massachusetts, £  "  In  the  gov- 
ernment of  this  commonwealth,  the  legislative  department  shall 
never  exercise  the  executive  and  judicial  powers,  or  either  of 
them ;  the  executive  shall  never  exercise  the  legislative  and  ju- 
dicial powers,  or  either  of  them ;  the  judicial  shall  never  exercise 
the  legislative  and  executive  powers,  or  either  of  them  ;  to  the  end 
that  it  may  be  a  government  of  laws,  and  not  of  men."  So  in 
Maryland,  ||  "  The  legislative,  executive,  and  judicial  powers  of 
government  ought  to  be  forever  separate  and  distinct  from  each 
other,  and  no  person  exercising  the  functions  of  one  of  said  de- 
partments shall  assume  or  discharge  the  duties  of  any  other." 
So  in  Virginia,^  "  The  legislative,  executive,  and  judicial  powers 
should  be  separate  and  distinct."  In  Alabama,  the  Constitution 
declares,**  "  The  power  of  the  government  of  the  State  shall  be 

*  Rodman  v.  Munson,  13  Barb.  63.  [  Declaration  of  Rights,  Art.  6. 

f  Art.  III.  1  Bill  of  Rights,  Art.  6. 

\  Constitution,  Part  I,  §  30.  **  Art,  II. 


134  WHAT    IS   A    LAW? 

divided  into  three  distinct  departments,  and  each  of  them  confided 
to  a  separate  body  of  magistracy,  to  wit :  those  which  are  legisla- 
tive to  one,  those  which  are  executive  to  another,  and  those  which 
are  judicial  to  another.  No  person  or  collection  of  persons  be- 
ing one  of  those  departments,  shall  exercise  any  power  properly 
belonging  to  either  of  the  others,  except  in  the  instances  here- 
inafter expressly  directed  or  permitted."  * 

A  very  little  reflection  is  sufficient  to  satisfy  us  that  the 
mere  use  of  the  terms  executive,  legislative,  and  judicial,  is  no 
satisfactory  definition  of  the  respective  powers ;  and  experience 
has  already  shown  the  difficulties  attendant  on  this  very  gen- 
eral language. 

What  is  the  legislative  power  \  What  is  a  law  ?  Is  it  a 
rule  of  universal  application ;  is  it  a  rule  of  prospective  appli- 
cation ?  Can  it  be  made  in  opposition  to  the  principles  of  natu- 
ral justice  ?  Can  a  law  be  made  to  determine  private  rights  ? 
Can  a  law  be  enacted  to  decide  private  controversies?  We 
shall  find  these  questions,  both  on  abstract  inquiry  and  also  in 
reference  to  the  necessities  of  our  complex  political  organization, 
not  easy  to  answer ;  and  yet,  unless  answered,  how  are  we  to 
say  with  accuracy  in  what  the  legislative  functions  consist,  or 
where  they  stop  ?  The  French  Code,  by  a  formal  and  express 
provision,  prohibits  all  retrospective  legislation,  and  the  princi- 
ple is  generally  admitted  to  be  sound ;  but  no  such  universal 
restriction  would  answer  with  us,  as  our  legislatures  are  con- 
stantly passing  laws  of  a  retrospective  character.  Such  are  the 
laws  declaring  certain  acts  of  persons  irregularly  elected,  valid ; 
correcting  assessment  rolls  irregularly  made ;  and  many  others 
of  like  character.  These  laws  have  never  been  questioned ;  and 
the  denial  of  the  power  would,  in  a  new  country,  where  forms 
are  often  overlooked,  lead  to  very  serious  consequences,  f  To 
this  we  shall  again  have  occasion  to  refer,  when  we  come  to 
speak  of  retrospective  statutes.  So  again,  as  to  legislative  acts 
affecting  private  property.  By  constitutional  provisions  gener- 

*  Of  this  Constitution,  the  Supreme  Court  tion  of  the  more  general  Constitutions  of  the 

of  the  United  States  has  said  "  that,  though  other   States."    Watkins  v.  Holman,  16  Pe- 

somewhat  peculiar,  it  is  not  substantially  dif-  ters,  pp.  25  and  60. 

ferent  from  that  of  Virginia.     The  particular  f  Syracuse  City  Bank  v.  Davis,  16  Barb, 

inhibition  of  its  Constitution  only  contains,  in  S.  C.  E.  188  ;  1  Kent's  Com.  p.  455. 
terms,  that  which  arises  from  the  construe- 


LEGISLATIVE  POWER.  135 

ally  adopted,  private  property  can  be  taken  for  public  uses,  on 
certain  terms.  But  can  it  be  taken  for  private  uses  ?  Is  an  act 
depriving  one  man  of  his  property  for  the  benefit  of  another,  a 
law  ?  Does  it  come  within  the  scope  of  the  legislative,  or  of 
the  judicial  functions  ? 

Nor  are  these  merely  speculative  or  abstract  questions.  We 
shall  find  them  presenting  themselves  in  a  large  class  of  cases 
which  I  am  about  to  examine.  The  difficulty,  generally,  ap- 
pears to  have  arisen  from  a  want  of  clear  perception  as  to  the 
true  nature  of  a  law ;  or,  in  other  words,  a  want  of  accurate 
notions  as  to  the  boundary  line  which,  under  our  system,  di- 
vides the  legislative  and  judicial  powers.  I  now  turn  to  a  more 
detailed  consideration  of  the  cases  in  this  country  where  these 
questions  have  been  considered,  and  which,  so  far  as  they  go, 
tend  to  give  a  practical  definition  to  the  term  law,  and  to  de- 
fine the  boundaries  which  separate  the  legislative  from  the  judi- 
cial power. 

And  first,  of  cases  where  the  Legislature  has  sought  to  divest 
itself  of  its  real  powers,  (a)  Efforts  have  been  made,  in  sev- 
eral cases,  by  the  State  Legislatures  to  relieve  themselves  of  the 

(a)  Submission  of  Laws  to  Popular  Vote. — Statutes  creating  municipal  incorpora- 
tions, or  imposing  liabilities  upon  municipalities,  or  authorizing  municipalities  to  in- 
cur debts  and  obligations,  or  to  make  improvements,  may  be  referred  to  the  popular 
vote  of  the  districts  immediately  affected;  in  other  words  the  people  of  such  districts 
may  decide  whether  they  will  accept  the  incorporation  or  will  assume  the  burdens. 
This  doctrine  may  be  considered  the  settled  law  of  the  whole  country,  and  the  same 
principle  has  frequently  been  applied  in  the  case  of  other  and  similar  local  measures. 
Bank  of  Rome  v.  Rome,  18  N.  Y.  38  ;  Starin  v.  Genoa,  23  N.  Y.  439 ;  Clarke  v.  Roch- 
ester, 28  N.  Y.  605 ;  Bank  of  Chenango  v.  Brown,  26  N.  Y.  467 ;  Corning  v.  Greene, 
23  Barb.  33;  Grant  v.  Courter,  24  Barb.  232;  Robinson  v.  Bidwell,  22  Cal.  379;  Ho- 
bart  v.  Supervisors,  17  Cal.  23;  Williams  v.  Cammack,  27  Miss.  209;  Alcorn  v.  Ha- 
mer,  38  Miss.  652 ;  Call  v.  Chadbourne,  46  Me.  206 ;  State  v.  Wilcox,  45  Mo.  458 ; 
State  v.  Scott,  17  Mo.  521 ;  Smith  v.  McCarthy,  56  Penn.  St.  359 ;  Commonwealth  v. 
Painter,  10  Penn.  St.  214  ;  San  Antonio  v.  Jones,  28  Tex.  19 ;  Louisville,  &c.  R.  R.  v. 
Davidson  Co.  1  Sneed.  637 ;  State  v.  O'Neil,  24  Wise.  149 ;  Cotton  v.  Lion  County, 
6  Plor.  610. 

A  law  establishing  free  schools  in  a  particular  district,  and  made  to  depend  as  to 
its  going  into  effect  on  the  vote  of  such  district,  was  upheld  in  Bull  v.  Read,  13 
Gratt.  78.  The  same  doctrine  has  been  held  of  any  local  law.  Hobart  v.  Supervis- 
ors, 17  Cal.  23 ;  People  ex  rel.  Wilson  v.  Salomon,  51  111.  38.  And  even  of  a  law 
affecting  the  whole  State.  Smith  v.  Janesville,  26  Wise.  291.  An  act  amending  a 
city  charter,  and  going  into  effect  as  a  whole  independently  of  assent,  but  requiring 


136  LEGISLATIVE   POWER. 

responsibility  of  their  functions,  by  submitting  statutes  to  the 
will  of  the  people,  in  their  primary  capacity.  But  these  pro- 
assent  as  to  certain  sections  before  they  were  to  be  acted  upon,  is  valid.  Clarke  v. 
Rochester,  28  N.  Y.  605 ;  24  Barb.  446. 

A  fortiori,  a  grant  of  power  to  do  certain  acts  upon  obtaining  the  consent  of 
specified  persons,  is  valid.  Morgan  v.  Monruouth  PI.  R.  Co.  2  Dutch.  99. 

The  following  are  instances  in  which  statutes  providing  for  a  submission  to  the 
popular  vote  of  the  localities  affected,  have  been  sustained :  Providing  for  the  change 
and  location  of  a  county  seat,  Commonwealth  v.  Painter,  10  Penn.  St.  214;  for  the 
uniting  specified  towns  or  districts,  Commonwealth  v.  Judges,  8  Penn.  St.  391 ;  Call 
v.  Chadbourne,  46  Me.  206 ;  for  the  division  of  a  county  or  town,  State  v.  Reynolds, 
5  Gilm.  1;  for  a  tax  to  be  laid  upon  a  district  for  the  purpose  of  constructing 
levees,  Alcorn  v.  Hamer,  88  Miss.  652. 

A  license  law  depending  for  its  going  into  effect  in  any  county  upon  the  popular 
vote  of  such  county,  is  invalid.  State  v.  Swisher,  17  Tex.  441 ;  Geebrick  v.  State,  5 
Clarke  (la.)  491 ;  Packer  v.  Commonwealth,  6  Penn.  St.  507 ;  Rice  v.  Foster,  4  Harr. 
(Del.)  479;  State  v.  Weir,  33  Iowa,  134;  and  the  same  where  the  vote  was  to  be  by 
towns.  Mishmeier  v.  State,  11  Ind.  484;  Maize  v.  State,  4  Ind.  342;  but  see  Ham- 
mond v.  Haines,  25  Md.  541,  where  a  statute  allowing  a  particular  municipality  to  de- 
termine by  popular  vote  whether  such  licenses  should  be  granted  therein,  was  sustained. 

Where  the  Constitution  provided  that  places  for  holding  courts  should  be  "pro- 
vided by  law,"  and  the  Legislature  enacted  that  they  should  be  held  at  the  county 
seat,  and  then  gave  the  counties  the  power  to  choose  their  county  seats,  this  was 
held  to  be  a  compliance  with  the  Constitution.  Upham  v.  Supervisors,  8  Cal.  378. 

A  statute  submitting  to  the  people  of  several  municipalities  the  question  whether 
they  should  be  consolidated,  is  valid.  Smith  v.  M'Carthy,  56  Peun.  St.  359. 

In  the  following  cases  the  reference  to  the  people  was  held  not  to  be  a  reference 
of  the  question  whether  the  proposed  act  should  be  a  law.  Santo  v.  State,  2  Clarke 
(la.),  165 ;  Beneke  v.  State,  9  Iowa,  203.  And  it  seems  that  it  is  the  provision  for  a 
reference  to  the  people,  and  not  the  whole  statute  that  is  to  be  considered  void.  Ibid. 

Where  the  Constitution  provided  that  no  county  of  a  certain  size  should  be 
di vided  without  a  popular  vote,  and  an  act  for  the  division  of  such  a  county  provided 
in  one  section  that  the  "  act "  should  be  submitted  to  popular  vote,  and,  in  another 
section,  that  the  act  should  take  effect  forthwith,  it  was  held  that  the  question  of 
division  and  not  the  act,  was  intended  to  be  submitted,  and  that  therefore  the  statute 
was  valid.  State  v.  El  wood,  11  Wise.  17. 

Where  the  Constitution  provided  that  no  law,  except  in  certain  specified  cases, 
should  be  passed  to  take  effect  upon  the  approval  of  any  other  authority  than  the 
General  Assembly,  it  was  held  that  an  act  giving  township  trustees  power  to  pur- 
chase land  for  a  cemetery,  etc.,  provided  that  the  electors  should  so  vote,  was  consti- 
tutional. Paris  Township  v.  Cherry,  8  Ohio,  N.  S.  564. 

The  Constitution  of  Minnesota  provides  that  all  laws  changing  county  lines  be- 
fore taking  effect  shall  be  submitted  to  the  electors  of  the  county.  A  general  statute 
that  upon  petition  of  a  certain  proportion  of  the  electors  of  any  county  for  a  change, 
the  question  should  be  submitted  to  a  vote  of  the  people,  without  providing  for  any 
decision  of  the  question  by  the  Legislature  in  the  first  instance,  was  held  void,  the 
court  holding  that  there  must  be  a  complete  law,  and  then  a  vote  as  to  its  going  into 
effect.  Roos  v.  Swenson,  6  Minn.  428. 

A  clause  in  a  general  act  for  the  incorporation  of  towns,  that  towns  already  in- 


LEGISLATIVE   POWER.  137 

ceedings  have  been  held,  and  very  rightly,  to  be  entirely  un- 
constitutional and  invalid.  The  duties  of  legislation  are  not  to 
be  exercised  by  the  people  at  large.  The  majority  governs,  but 
only  in  the  prescribed  form ;  the  introduction  of  practices  of 
this  kind  would  remove  all  checks  on  hasty  and  improvident 
legislation,  and  greatly  diminish  the  benefits  of  representative 
government.  So  where  an  act  to  establish  free  schools  was,  by 
its  terms,  directed  to  be  submitted  to  the  electors  of  the  State, 
to  become  a  law  only  in  case  a  majority  of  the  votes  were  given 
in  its  favor,  it  was  held,  in  New  York,  that  the  whole  proceed- 
ing was  entirely  void.  "  The  Legislature,"  said  the  Court  of 
Appeals,  "have  no  power  to  make  such  submission,  nor  had 
the  people  the  power  to  bind  each  other  by  acting  upon  it. 
They  voluntarily  surrendered  that  power  when  they  adopted 
the  Constitution.  The  government  of  this  State  is  democratic ; 
but  it  is  a  representative  democracy,  and  in  passing  general 
laws,  the  people  act  only  through  their  representatives  in  the 
Legislature."  *  And  in  Pennsylvania,  in  the  case  of  an  excise 
statute,f  the  same  stern  and  salutary  doctrine  has  been  applied. 
In  some  of  the  more  recent  State  Constitutions  this  rule  has 
been  made  a  part  of  the  fundamental  law.  So  in  Indiana,  the 

*  Thome  v.  Cramer,  15  Barb.  112;  Barto  f  Parker  v.  Commonwealth,  6  Barr.  507. 

v.  Himrod,  4  Seld.  483. 

corporatcd  may  by  popular  vote  adopt  such  of  its  provisions  as  they  please,  was  up- 
held in  Bank  of  Chenango  v.  Brown,  26  N.  Y.  467 ;  and  the  same  was  held  of  an  act 
authorizing  the  electors  of  a  county  to  determine  by  vote  whether  the  running  at 
large  of  sheep  and  swine  should  be  restrained.  Dalby  v.  Wolf,  14  Iowa,  228. 

In  general,  statutes  fully  enacted  by  the  Legislature  may  be  conditional  in  their 
operation,  to  take  effect  upon  some  future  event.  State  v.  Parker,  26  Vt.  357 ;  Bull 
v.  Read,  13  Gratt.  78 ;  State  v.  Kirkby,  29  Md.  85 ;  Peck  v.  Weddell,  17  Ohio,  N.  S. 
271.  And  it  has  been  held  that  if  a  general  law  is  passed  to  take  effect  at  one  or  the 
other  of  two  specified  times,  the  question  may  be  referred  to  a  popular  vote  of  the 
whole  State,  at  which  of  these  times  it  shall  go  into  effect.  State^v.  Parker,  26  Vt. 
357 ;  and  see  People  v.  Collins,  3  Mich.  343,  in  which  the  court  was  equally  divided. 

Subject  to  the  foregoing  exceptions  and  limitations,  the  question  whether  a  gen- 
eral law  shall  go  into  effect  or  not  cannot  be  referred  to  a  popular  vote  of  the  whole 
State.  People  v.  Stout,  23  Barb.  349 ;  State  v.  Wilcox,  45  Mo.  458 ;  State  v.  Field, 
17  Mo.  529;  State  v.  Swisher,  17  Tex.  441 ;  State  v.  Beneke,  9  Iowa,  203;  Bank  of 
Chenango  v.  Brown,  26  N.  Y.  467.  Nor  the  question  whether  such  a  law  shall  be 
repealed.  Geebrick  v.  State,  5  Iowa,  491 ;  Packer  v.  Commonwealth,  6  Penn.  St. 
507;  Rice  v.  Foster,  4  Harr.  (Del.)  479 ;  State  v.  Weir,  33  Iowa,  134. 


138  LEGISLATIVE   POWER. 

principle  is  now  framed  into  a  constitutional  provision  which. 
vests  the  legislative  authority  in  a  Senate  and  House  of  Repre- 
sentatives, and  declares  that  "  no  law  shall  be  passed,  the  tak- 
ing effect  of  which  shall  be  made  to  depend  upon  any  authority 
except  as  provided  in  the  Constitution."  And  under  these  pro- 
visions it  has  been  held,  that  so  much  of  an  act  as  relates  to  its 
submission  to  the  popular  vote,  was  null  and  void.* 

For  the  same  reason,  that  a  Legislature  cannot  return  or 
throw  back  upon  the  people  the  duty  of  making  laws,  for  the 
same  reason  its  powers  cannot  be  delegated  by  it  to  any  inferior 
authority.  "  It  will  not  be  contended,"  says  Marshall,  C.  J.,  in 
the  Supreme  Court  of  the  United  States,  "  that  Congress  can 
delegate  to  the  courts,  or  to  any  other  tribunals,  powers  which 
are  strictly  legislative."  f 

Another  sort  of  departure  from  the  true  functions  of  the 
law-making  power,  has  been  manifested  in  other  cases.  While, 
in  the  instances  we  have  just  noticed,  the  State  Legislatures 
have  sought  to  relieve  themselves  from  the  responsibility  justly 
devolving  upon  them ;  in  other  cases  they  have  been  induced 
to  trench  on  the  functions  of  the  legal  tribunals,  and,  in  the 
shape  and  under  the  name  of  laws,  to  assume  the  right  to  pass 
enactments  really  of  a  judicial  nature,  (a)  This  practice  has 

*  Maize  v.  The  State,  4  Indiana,  342.  See  the  law  may  commit  something  to  the  dis- 

an  able  and  independent  opinion  by  Stuart,  J.  cretion  of  the  other  departments;  and  the 

But  I  doubt  whether,  logically,  the  whole  act  precise  boundary  of  this  power  is  a  subject 

should  not  fail.  j\'on  cmistat  that  the  Legisla-  of  delicate  and  difficult  inquiry,  into  which  a 

ture  would  have  passed  the  law  without  the  court  will  not  enter  unnecessarily."  See,  also, 

clause  in  question.  The  New  York  and  Penn-  United  States  Bank  v.  Halstead,  10  Wheaton, 

sylvania  decisions  appear  to  me,  in  this  re-  51,  where  the  delegation  of  power,  as  far  as 

spect,  to  rest  on  a  sounder  basis.  the  process  of  the  courts  was  concerned,  was 

f  Wayman  v.  Southard,  10  Wheaton,  pp.  expressly  held  valid.  [The  Legislature  may 

1,  46.  Still,  it  was  intimated,  in  this  case,  that  give  to  a  board  of  health  power  to  make  by- 

the  federal  Legislature  could  delegate  to  the  laws.  Coe  v.  Schultz,  47  Barb.  64 ;  ex  parte 

courts  power  to  make  rules  for  their  process ;  Shrader,  33  Cal.  279;  but  see  Schuster  v. 

and  it  was  said,  "The  difference  between  the  Metropolitan  Board,  49  Barb.  450.  The 

departments  undoubtedly  is,  that  the  Legisla-  power  may  be  given  to  municipal  corporations 

ture  makes,  the  executive  executes,  and  the  ju-  to  make  sanitary  regulations.  Bliss  v.  Krauss, 

diciary  construes  the  law;  but  the  maker  of  16  Ohio,  K  S.  55.] 

(a)  The  subject-matter  of  the  text  and  of  this  note  properly  belongs  to  the  dis- 
cussion of  the  constitutional  provisions  respecting  "  due  process  of  law  "  and  "  the 
law  of  the  land."  The  exact  question  proposed  in  the  text  and  in  this  note  is,  What 
is  a  law,  within  the  meaning  of  these  provisions,  so  as  to  be  within  the  province  of  a 
Legislature,  in  contradistinction  from  a  judicial  act,  which  is  within  the  jurisdiction 
of  courts  alone  ?  In  general,  it  is  the  function  of  courts  to  deal  with  facts  already 
transpired,  and  to  proceed  upon  the  law  as  it  then  stands,  and  of  the  Legislature  to 


LEGISLATIVE  POWER.  139 

encountered  similar  opposition,  and  has  been  unfailingly  and 
severely  discountenanced.     The  Legislature  is  to  confine  itself 

declare  the  rule  for  future  cases.     Law  of  the  land  means  due  process  of  law,  not  an 
arbitrary  act  of  the  Legislature.     Craig  v.  Kline,  65  Penn.  St.  399. 

Any  legislation  which,  by  changing  the  fundamental  relations  and  vested  rights 
of  the  parties,  attempts  to  reverse  the  ruling  of  the  court  on  a  past  case,  or  to  control 
its  decision  in  a  pending  case,  is  a  usurpation  of  the  judicial  function,  and  is  void. 
Thus,  an  act  purporting  to  validate  an  assignment  in  insolvency,  already  declared 
void  by  the  highest  court  of  the  State,  is  a  judicial  act,  and  invalid.  Denny  v.  Mat- 
toon,  2  Allen,  361.  For  the  same  reason,  it  seems,  the  Legislature  cannot  provide  for 
deduction  from  terms  of  imprisonment,  according  to  a  scale  for  good  behavior.  State 
v.  Halloway,  42  Penn.  St.  446.  A  statute  of  Congress  providing  that  the  acceptance 
of  a  pardon  from  the  President  shall  be  proof  of  the  commission  of  the  criminal  acts 
pardoned,  and  that  such  pardon  shall  not  be  considered  by  the  courts  in  support  of 
certain  claims  against  the  United  States  (the  Supreme  Court  having  previously  de- 
cided that  pardoned  persons  might  maintain  such  claims),  is  unconstitutional  and 
void,  since  it  seeks  to  reverse  the  decisions  of  the  courts,  and  to  prescribe  a  rule  to 
them  in  particular  cases.  United  States  v.  Klein,  13  Wai.  128.  A  statute  intended 
to  deprive  a  plaintiff  of  the  benefit  of  a  judgment  obtained  by  him,  is  invalid.  Had- 
field  v.  Mayor,  &c.  6  Bobt.  501.  Nor  has  the  Legislature  power  to  open  judgments. 
Davis  v.  Menasha,  21  Wise.  491 ;  Atkinson  v.  Dunlap,  50  Me.  Ill;  Taylor  v.  Place, 
4  R.  I.  324;  Young  v.  State  Bank,  4  Ind.  301 ;  Baggs'  Appeal,  43  Penn.  St.  512; 
Miller  v.  Gibson,  63  N.  C.  635  ;  Griffin's  Ex'or  v.  Cunningham,  20  Gratt.  31  ;  see, 
also,  U.  S.  v.  Samperyac,  1  Hemp.  C.  C.  118  ;  Burch  v.  Newbury,  10  N.  Y.  374,  per 
Jewett,  J.  Nor  to  restore  discontinued  appeals.  Carleton  v.  Goodwin's  Ex'or,  41 
Ala.  153.  Nor  to  prohibit  the  issuing  of  an  injunction  in  a  particular  case.  Guy  v. 
Hermance,  5  Cal.  73.  The  Legislature  cannot,  by  declaratory  statute,  give  a  con- 
struction to  the  Constitution,  which  shall  be  binding  on  the  courts.  Calhoun  v. 
McLendon,  42  Geo.  405.  Nor  declare  the  meaning  of  an  existing  statute,  so  as  to 
affect  pending  suits  and  vested  rights.  People  v.  Supervisors,  16  N.  Y.  424 ;  Reiser 
v.  William  Tell  Ass.  39  Penn.  St.  137 ;  Trask  v.  Green,  9  Mich.  358,  366 ;  but  see 
Savings  Bank  v.  Allen,  28  Conn.  97 ;  Tilford  v.  Ramsey,  43  Mo.  410. 

The  Legislature  may,  it  seems,  authorize  a  court  to  re-open  a  particular  case,  if 
such  court  is  satisfied,  on  the  facts  shown,  that  the  ends  of  justice  will  be  promoted 
thereby.  Calvert  v.  Williams,  10  Md.  478.  But  a  statute  allowing  the  court  to  grant 
a  divorce  between  particular  individuals  is  a  judicial  decree,  and  not  a  law,  and  is 
void.  Simonds  v.  Simonds,  103  Mass.  572.  The  change  of  venue,  however,  in  a 
particular  case,  by  the  Legislature,  is  not  a  judicial  act.  Smith  v.  Judge,  17  Cal. 
547. 

Notwithstanding  the  generality  of  the  rule  above  illustrated,  and  notwithstand- 
ing the  general  theory  upon  which  the  government  is  framed,  it  is  impossible  to  sep- 
arate the  judicial  and  the  legislative  functions  absolutely.  The  Legislature  must,  in 
matters  of  public  concern,  frequently  exercise  quasi  -judicial  powers — must  enact 
measures  which  are  essentially  judicial.  The  following  are  a  few  illustrations  of  this 
principle :  In  Massachusetts,  the  Legislature  may,  by  commissioners,  apportion  the 
expense  of  maintaining  a  highway  upon  the  counties  through  which  it  runs.  Hing- 
ham,  &c.  Co.  v.  Norfolk,  6  Allen,  353;  see,  also,  Salem  Turn.  Co.  v.  Essex  Co.  100 
Mass.  282;  Commonwealth  v.  Newburyport,  103  Mass.  129  ;  Haverhill  Bridge  Co.  v. 
Essex  Co.  103  Mass.  120  ;  Dow  v.  Wakefield,  108  Mass.  267 ;  Waterville  v.  County 


140  LEGISLATIVE   POWER. 

to  making  laws,  and  cannot  make  decrees  or  determine  private 
controversies.  It  has  been  said,  that  which  distinguishes  a  ju- 

Comm'rs,  59  Me.  80.  And  the  Legislature  may  apportion  payments  to  be  made  for  a 
bridge,  contracted  for  by  a  county,  between  such  county  and  a  new  county  carved 
out  of  it.  People  v.  Alameda,  26  Cal.  641.  And  may  apportion  debts  where  a  town 
is  formed  out  of  two  old  ones.  State  v.  Elvins,  3  Vroom.  362. 

The  Legislature  is  not  the  final  judge  as  to  the  forfeiture  of  a  charter  for  rnisuser, 
non-user,  or  abuse.  Commonwealth  v.  Pittsburg,  &c.  R.  R.  58  Penn.  St.  26. 

Private  Statutes  in  Relation  to  Persons  not  Sui  Juris,  Charities,  and  the  Like. — 
Not  only  in  matters  of  public  concern,  but  in  strictly  private  matters,  the  Legislature 
may,  under  some  special  circumstances,  and  within  well-defined  limits,  exercise  ju- 
dicial functions  and  enact  measures  which  are  strictly  judicial.  The  cases  cited  are 
illustrations  and  examples  of  this  power  and  practice.  The  reader  is  referred  to  them 
for  a  discussion  of  the  principle  upon  which  the  Legislature  proceeds,  and  the  limit- 
ations upon  its  power.  Statutes  have  been  sustained  in  many  instances  which  ao- 
thorize  sales  by  executors,  guardians,  and  the  like,  where  the  parties  in  interest  are 
not  sui  juris.  Kneass'  Appeal,  31  Penn.  St.  87;  Matter  of  Bull,  45  Barb.  334;  Leg- 
gett  v.  Hunter,  19  N.  Y.  445 ;  McComb  v.  Gilkey,  29  Miss.  146 ;  Ward  v.  New  En- 
gland, &c.  Co.  1  Cliff.  C.  C.  565  ;  Davis'  Lessee  v.  Helbig,  27  Md.  452;  Stewart  v. 
Griffith,  33  Mo.  13  ;  DeMill  v.  Lockwood,  3  Blatch.  C.  C.  56.  But  Legislature  can- 
not authorize  or  validate  a  sale  of  laud  devised  with  a  restriction  upon  alienation. 
Stewart  v.  Griffith,  33  Mo.  13,  24.  The  Legislature  may  also  authorize  sale  of  land 
held  in  trust  for  life  tenants,  with  remainder  to  heirs,  upon  security  being  given  for 
investment  of  the  proceeds  in  other  lands  upon  the  same  trusts.  Clarke  v.  Hayes,  9 
Gray,  426.  Where  a  married  woman,  to  whom  land  had  been  devised  for  life,  with- 
out power  of  alienation,  remainder  to  her  heirs,  conveyed  in  fee,  and  the  Legislature 
passed  an  act  confirming  her  deed,  such  act  was  held  void.  Shonk  v.  Brown,  61 
Penn.  St.  320. 

The  Legislature  possesses  the  same  general  power  in  cases  of  charities—  e.  g.,  it 
may  vest  the  title  of  trustees  of  charities  in  a  corporation.  Matter  of  New  York,  &c. 
School,  31  N.  Y.  574.  A  statute  appointing  a  trustee  to  fill  a  vacancy  under  a  deed 
of  trust,  the  appropriate  court  having  been  suspended,  was  held  valid.  Hindman  v. 
Piper,  50  Mo.  292.  It  was  held  iri~  Delaware  that  where  land  had  been  devised  in 
trust  for  a  charity,  to  be  rented  and  not  sold,  the  Legislature  could  not  authorize  it 
to  be  converted  into  personal  property,  although  such  conversion  would  be  for  the 
benefit  of  the  trust.  Tharp  v.  Fleming,  1  Houst.  580.  Otherwise  in  Connecticut. 
Stanley  v.  Colt,  5  Wai.  119.  The  Legislature  cannot,  by  private  act.  authorize  the 
sheriff  to  sell,  in  a  particular  case,  after  the  time  allowed  by  law.  Taylor  v.  Allen, 
67  N.  C.  346. 

The  Legislature  cannot,  in  general,  order  sale  of  a  person's  interest  who  is  sui 
juris.  Kneass'  Appeal,  ubi  sup. ;  Schoenberger  v.  School  Directors,  32  Penn.  St.  34. 
But  in  Pennsylvania  sale  may  be  so  ordered  where  it  is  necessary  for  purposes  of 
partition,  even  though  the  parties  are  sui  juris.  Fullerton  v.  McArthur,  1  Grant's 
Cases,  232.  Qu.,  if  all  the  parties  are  sui  juris.  It  has  been  held  that  the  Legislature 
may,  by  special  act,  authorize  the  sale  of  lands  of  a  decedent  to  pay  his  debts. 
Florentine  v.  Barten,  2  Wai.  210.  The  contrary  has  also  been  held,  and  such  power 
denied,  unless  it  were  the  carrying  out  of  a  judicial  proceeding  ascertaining  the  debts, 
&c.  Rozier  v.  Fagan,  46  111.  404.  And  a  statute  authorizing  an  administrator  to 
sell  the  real  estate  of  his  intestate  for  purposes  other  than  the  payment  of  his  debts 


LEGISLATIVE    POWER.  141 

dicial  from  a  legislative  act  is,  that  the  one  is  a  determination 
of  what  the  existing  law  is  in  relation  to  some  particular  thing 

and  charges  of  administration,  or  the  support  of  the  family,  is  void  in  California. 
Brenham  v.  Story,  39  Cal.  179.  By  the  general  law  of  California,  an  administrator 
has  a  large  control  of  the  real  estate  as  assets. 

The  Constitution  of  Michigan  provides  that  the  Legislature  shall  not  authorize,  "  by 
private  or  special  law,  the  sale  or  conveyance  of  any  real  estate  belonging  to  any  per- 
son." An  act  authorizing  a  particular  Plank  Road  Co.  to  mortgage  its  road,  was  held 
not  to  fall  within  this  restriction,  but  to  be  a  mere  amendment  of  its  charter,  and  to 
be  valid.  Joy  v.  Jackson,  &c.  Co.  11  Mich.  155. 

The  Tennessee  Constitution  says :  "  The  Legislature  shall  have  no  power  to  sus- 
pend any  general  law  for  the  benefit  of  any  particular  individual,  nor  to  pass  any  law 
for  the  benefit  of  individuals,  inconsistent  with  the  general  laws  of  the  land."  A 
statute  was  passed,  limiting  to  a  period  of  six  months  from  the  passage  thereof,  actions 
for  slaves  which  had  been  sold  under  judicial  sale,  under  the  provisions  of  a  certain 
special  act,  and  where  heirs,  legatees,  or  distributees  were  not  parties  to  the  proceed- 
ings,— held,  unconstitutional  and  void.  Morgan  v.  Reed,  2  Head,  276. 

Curative  Statutes. — Broad  powers  haye  sometimes  been  attributed  to  Legislatures 
acting  by  means  of  curative  statutes,  especially  in  matters  of  public  concern,  so  that 
even  decisions  and  judgments  of  the  courts,  legal  and  valid  when  rendered,  have 
sometimes  been  annulled  or  avoided.  It  is  not  pretended,  however,  that  the  Legis- 
lature can,  in  general,  set  aside  or  make  of  no  effect  a  judgment  establishing  private 
rights.  When  such  effect  has  been  produced,  it  is  simply  as  an  incident  to  the  power 
of  the  Legislature  to  cure  irregularities  in  legislative  or  administrative  proceedings. 
To  illustrate :  A  statute  legalizing  certain  appropriations,  infected  with  irregularity, 
was  held  to  make  the  proceedings  valid  ab  initio,  and  therefore  to  destroy  the  effect 
of  an  intervening  judgment  declaring  them  invalid.  King  v.  Course,  25  Ind.  202. 
And  where  a  contract,  entered  into  under  an  ordinance,  had  been  pronounced  void 
by  the  court,  because  the  ordinance  itself  had  not  been  recorded,  as  required  by  the 
statute,  a  subsequent  statute  removed  the  difficulty  and  overcame  the  adverse  decision. 
Commonweath  v.  Marshall,  69  Penn.  St.  328.  In  these  and  similar  cases  the  defect 
or  irregularity  did  not  go  to  the  essence  or  foundation  of  the  proceeding:  it  was  in 
respect  to  something  of  mere  form,  which  the  Legislature  might  have  dispensed  with 
originally ;  although  it  rendered  the  proceeding  invalid  in  strict  law,  yet,  as  a  matter 
of  abstract  right  and  justice,  the  proceeding  ought  to  stand.  Thus,  in  the  last  case, 
the  ordinance  was  properly  passed,  the  contract  under  it  properly  made,  and  the 
subsequent  neglect  to  record  the  ordinance  did  not  affect  the  just  and  equitable  rela- 
tions of  the  parties,  however  much  it  may  have  affected  their  strict  legal  relations. 
The  Legislature,  therefore,  by  curing  the  defect,  carried  out  the  real  intentions  and 
sustained  the  just  rights  of  those  interested;  and  the  intervening  judgment  did  not 
change  those  intentions,  relations,  and  abstract  rights ;  but  being  a  mere  incident,  it 
was  removed  with  the  formal  defect  upon  which  it  was  based. 

In  another  large  class  of  cases,  it  is  held  that  the  Legislature  cannot  disturb  judg- 
ments— cannot  make  valid  what  the  courts  have  pronounced  void.  In  these  cases  it 
will  be  found  that  the  element  of  invalidity  was  essential,  that  ifc  affected  the  entire 
relations  of  the  parties,  and  that  the  judgment  did  not,  in  fact,  add  anything  to  the 
existing  defect  which  was  itself  beyond  the  curative  power  of  the  Legislature.  The 
following  cases  are  illustrations :  The  Legislature  cannot  validate  an  assignment  in 
insolvency  which,  has  been  declared  void  by  the  court.  Denny  v.  Mattoon,  2  Allen, 


142  LEGISLATIVE   POWER. 

already  done  or  happened,  while  the  other  is  a  predetermina- 
tion of  what  the  law  shall  be  for  the  regulation  and  govern- 

361.  Nor  authorize  the  collection  of  an  assessment  already  pronounced  void  by  the 
court.  Mayor,  &c.  v.  Horn,  26  Md.  194.  Nor  validate  a  sheriff's  deed  under  which 
the  court  has  held  that  no  title  passed.  Menges  v.  Dentler,  33  Penn.  St.  495.  Nor, 
it  seems,  validate  defective  pleadings  without  an  amendment.  People  v.  Maripoosa 
Co.  31  Cal.  196.  .  Nor  declare  a  man  and  woman  husband  and  wife,  where  the  man 
had  a  wife  living  from  whom  he  had  been  divorced  for  his  desertion,  and  without 
leave  to  marry  again.  White  v.  White,  105  Mass.  325. 

Where  a  suit  has  been  commenced  to  set  aside  a  deed,  or  proceeding,  or  transac- 
tion, it  is  at  least  doubtful  whether  curative  legislation  is  not  an  interference  with 
the  judicial  function,  and  void.  Thus,  where  a  married  woman,  not  of  age,  had 
released  her  dower,  and  afterwards  commenced  proceedings  to  avoid  her  release,  it 
was  held  that  a  curative  statute  could  not  validate  it.  Adams  v.  Palmer,  51  Me.  480. 
But,  on  the  other  hand,  it  was  held  that  the  Legislature  may  cure  irregularities  in  the 
organization  of  a  school  district,  attempted  under  a  general  law,  although  it  could 
not,  by  special  act,  incorporate  the  district ;  and  although  the  organization  would 
have  been  wholly  invalid  without  this  subsequent  confirmation,  and  although  a  suit 
was  pending  involving  the  validity  of  the  organization.  State  v.  Squires,  26  Iowa, 
340. 

Curative  statutes  may  have  the  effect  of  taking  away  property  without  due 
process  of  law,  even  though  not  objectionable  on  the  ground  of  their  interference 
with  judicial  decisions.  Such  effect  would,  of  course,  render  them  unconstitutional- 
Where  the  validating  of  an  act,  proceeding,  or  transaction  by  a  curative  statute 
would  divest  an  intervening  vested  title  or  right,  and  especially  where  the  act,  pro- 
ceeding, or  transaction  was  originally  not  merely  defective  or  voidable,  but  void,  the 
curative  statute  will  not,  it  seems,  avail,  even  though  enacted  before  any  legal  steps 
in  disaffirmance  had  been  taken.  Thus,  it  has  been  held  that  the  Legislature  cannot 
validate  defective  acknowledgments  of  a  deed,  so  as  to  affect  the  vested  rights  of  a 
purchaser  at  sale  on  execution  against  the  grantor.  Brinton  v.  Seevers,  12  Iowa,  389  ; 
and  see  Thompson  v.  Morgan,  6  Minn.  292.  Nor  can  the  Legislature  confirm  a  pat- 
ent or  survey  when  absolutely  void,  so  as  to  override  an  intervening  title.  Sherwood 
v.  Fleming,  25  Tex.  Su.  408;  Wright  v.  Hawkins,  28  Tex.  452.  But  it  was  held  in 
Wildes  v.  Van  Voorhis,  15  Gray,  139,  that  the  Legislature  may  provide  that  a  hus- 
band's past  deed  of  land,  which  was  exempted  to  the  extent  of  $800  as  a  homestead, 
shall  be  valid  (though  the  wife  did  not  join)  to  convey  the  excess  over  $800,  subject 
to  dower,  as  against  a  purchaser  of  the  husband's  interest. 

It  has  been  held  that  tax  proceedings,  or  other  proceedings  taking  away  a  right 
or  imposing  a  burden,  cannot  be  validated,  where  the  defects  in  them  are  so  essential 
as  to  make  them  void ;  for  example,  a  tax  where  there  was  no  valuation.  People  v. 
McCreery,  34  Cal.  432.  Or  where  a  tax  deed  is  void,  as'between  the  parties,  for  un- 
certainty of  description.  Orton  v.  Noonan,  23  Wise.  102.  Or  where  such  a  deed 
covers  land  not  subject  to  taxation.  Taylor  v.  Miles,  5  Kans.  498,  511.  Or  where 
the  deed  was  void  for  want  of  authority  to  levy  the  tax.  Hopkins  v.  Mason,  61 
Barb.  469.  Or  where  a  judgment  for  taxes  upon  constructive  notice  is  void  for 
irregularities.  Nelson  v.  Rountree,  23  Wise.  367. 

A  tax  deed  cannot,  it  seems,  be  made  conclusive  evidence  of  essential  facts — e.  g.y 
assessment  and  notice.  Abbott  v.  Lindenbower,  42  Mo.  162;  and  see,  also,  Corbin  v. 
Hill,  21  Iowa,  70 ;  Wright  v.  Cradlebaugh,  3  Nev.  341 ;  Wantlan  v.  White,  19  Ind. 


LEGISLATIVE  POWER.  143 

ment  of  all  future  cases  falling  under  its  provisions.*  This,  like 
other  definitions  on  this  subject,  maybe  defective;  but  the  gen- 

*  Bates  v.  Kimball,  2  Chipp.  77. 

470 ;  White  v.  Flynn,  23  Ind.  46  ;  Hope,  &c.  Ins.  Co.  v.  Flynn,  38  Mo.  483.  But  it  is 
otherwise  where  irregularities  only  are  cured.  Thus,  a  statute  providing  that  no 
irregularity  in  the  levy  or  assessment  shall  be  set  up  in  defence  to  an  action  for  taxes, 
and  that  certain  documents  shall  be  prima  facie  evidence  of  delinquency,  is  valid. 
People  v.  Seymour,  16  Cal.  332.  And  also  a  statute  providing  that  after  the  record- 
ing of  a  tax  deed  it  shall  not  be  invalidated  by  any  irregularities,  provided  the  land 
was  subject  to  the  tax,  and  it  was  not  paid.  Smith  v.  Cleveland,  17  Wise.  556 ;  see, 
also,  Allen  v.  Armstrong,  16  Iowa,  508,  where  notice  seems  to  be  held  a  non-essential. 
An  act  curing  irregularities  in  previous  tax  levies  is  constitutional.  Musselman  v. 
Logansport,  29  Ind.  533;  Bellows  v.  Weeks,  41  Vt.  590.  But  an  act  curing  "any 
omission,  defect,  or  irregularity"  was  held  not  to  cover  an  assessment  to  the  husband, 
jointly  with  his  own,  of  lots  owned  by  the  wife.  Hamilton  v.  Fond  du  Lac,  25 
Wise.  490. 

The  Legislature  may  cure  irregularities  in  the  subscription  of  a  municipal  corpo- 
ration, town,  or  county  in  aid  of  a  railroad.  McMillin  v.  Boyles,  6  Clarke  (la.)  304. 
But  if  the  proceeding  was  void  for  want  of  authority,  it  seems  the  Legislature  cannot 
validate  it,  so  as  to  bind  the  municipality,  without  its  consent.  Hasbrouck  v.  Mil- 
waukee, 13  Wise.  37;  Comm'rs  of  Shawnee  Co.  v.  Carter,  2  Kans.  115. 

The  Legislature  may  validate  an  ordinance  for  grading  streets,  which  had  become 
void,  because  not  duly  recorded,  and  make  valid  the  lien  on  lot  owners.  Schenley 
v.  Commonwealth,  36  Penn.  St.  29 ;  Commonwealth  v.  Mai-shall,  69  Penn.  St.  328 ; 
see,  also,  Mayor  v.  State,  3  Vroom,  453;  Dean  v.  Charlton,  23  Wise.  590;  May  v. 
Holdridge,f  23  Wise.  93  The  resolution  of  a  common  council  assenting  to  the  loca- 
tion of  a  railroad,  may  be  validated.  People  v.  Law,  34  Barb.  494 ;  Wetmore  v. 
Law,  /&.  515.  And  the  Legislature  may  legalize  the  establishment  of  county  roads. 
Bennett  v.  Fisher,  26  Iowa,  497.  But  where  proceedings  for  taking  land  are  void, 
for  want  of  jurisdiction,  they  cannot  be  cured.  Richards  v.  Role,  68  Penn.  St.  248. 
That  the  Legislature  may  cure  irregularities  in  a  sale  of  public  land,  under  a  statute, 
see  State  v.  Sickler,  9  Ind.  67;  Mayers  v.  Byrne,  19  Ark.  308.  Or  in  a  municipal 
grant  of  land.  Payne  v.  Treadwell,  16  Cal.  220.  Or  may  cure  other  municipal  ir- 
regularities. Allen  v.  Archer,  49  Me.  346 ;  People  v.  Ingham  Co.  20  Mich.  95. 

The  Legislature  may  confirm  a  sale  of  infant's  estate  made  under  order  of  Probate 
Court,  without  the  appraisement  required  by  law.  Davis  v.  State  Bank,  7  Ind.  316; 
and  see,  alsof  Thornton  v.  McGrath,  1  Duv.  (Ky.)  349 ;  Boyce  v.  Sinclair,  3  Bush 
(Ky.)  261. 

The  foregoing  are  illustrations  of  the  power  of  the  Legislature  to  cure  irregulari- 
ties and  defects  which  do  not  go  to  the  essence  of  a  proceeding.  It  is  a  general 
principle,  that  when  an  act,  proceeding,  or  transaction  is  void,  and  not  merely  void- 
able on  account  of  some  formal  defect,  it  cannot  be  cured  by  legislative  action ; 
whatever  discrepancy  in  the  decided  cases  exists — and  there  is  much  discrepancy — 
seems  to  result  from  a  disagreement  as  to  what  constitutes  an  essential  defect,  rather 
than  from  any  disagreement  as  to  the  principle  itself. 

Thus,  it  is  held  in  one  case  that  a  fraudulent  sale  cannot  be  confirmed  by  statute. 
White  Mts.  R.  R.  v.  White  Mts.  R.  R.  50  N.  H.  50.  And  in  another,  that  the  deed 
of  a  married  woman,  void  on  account  of  defective  acknowledgment,  cannot  be  valid- 


144  LEGISLATIVE   POWER. 

eral  idea  is  correct,  and  the  efforts  of  the  courts  to  repress  the 
State  Legislatures  within  their  proper  limits,  are  very  curious 
and  instructive.  It  is  difficult  precisely  to  classify  these  objec- 
tionable laws,  but  they  will  be  found,  generally,  to  range  under 
three  heads :  *  First,  Where  the  Legislature,  by  a  special  act, 
has  sought  to  dispense  with  a  general  law  in  favor  of  an  indi- 
vidual ;  Second,  Where  the  act  is  one  of  legislation  for  a  partic- 
ular case ;  Third,  where  the  act  is,  in  its  nature,  judicial — i.  e., 
seeks  to  influence,  directly  or  indirectly,  the  determination  of 
private  controversies.  In  these  cases  the  judiciary  have,  with 
an  intelligence  and  firmness  that  do  them  great  honor,  frequently 
interposed  to  arrest  the  operations  of  the  State  Legislatures ; 
and  the  Legislatures,  with  equal  intelligence  and  virtue,  have, 
in  a  great  majority  of  cases,  recognized  the  wisdom  and  pro- 

*  Davison  v.  Johonnot,  7  Met.  389. 

ated.  Alabama,  &c.  Ins.  Co.  v.  Boykin,  38  Ala.  510 ;  but  see  Journeay  v.  Gibson,  56 
Perm.  St.  57.  And  the  decided  weight  of  authority  is  that  such  and  similar  deeds 
may  be  validated,  because  the  Legislature  is  thereby  carrying  out  the  intention  of 
the  parties,  and  is  doing  an  act  just  and  right.  In  Deutzel  v.  Waldie,  30  Cal.  138,  a 
statute  validating  a  past  power  of  attorney  of  a  married  woman,  and  conveyances 
thereunder,  was  sustained.  In  Missouri,  a  statute  legalizing  the  deed  of  an  insane 
person  was  held  void,  under  a  provision  of  the  State  Constitution,  forbidding  "retro- 
spective "  legislation.  Routsong  v.  Wolf,  35  Mo.  174.  An  act  validating  usurious 
contracts,  previously  void  in  part,  was  upheld  in  Savings  Bank  v.  Allen,  28  Conn.  97 ; 
but  see  Reiser  v.  William  Tell,  &c.  Assn.  39  Penn.  St.  137.  A  term  of  court,  held 
without  authority  of  law,  may,  it  seems,  be  legalized.  Walpole  v.  Elliott,  18  Ind. 
258. 

The  Constitution  of  Ohio  contains  the  following  provision :  "  The  General  Assem- 
bly shall  have  no  power  to  pass  retroactive  laws,  or  laws  impairing  the  obligation  of 
contracts ;  provided,  however,  that  the  General  Assembly  may,  by  general  laws,  au- 
thorize courts  to  carry  into  effect  the  manifest  intention  of  parties  and  officers,  by 
curing  omissions,  defects,  and  errors  in  instruments  and  proceedings  arising  out  of 
their  want  of  conformity  with  the  laws  of  this  State,  and  upon  such  terms  as  shall 
be  just  and  equitable."  It  was  held  under  this  provision  that  a  statute  authorizing 
the  correction  of  errors  or  mistakes  in  the  deed,  &c.  of  any  husband  or  wife,  hereto- 
fore or  hereafter  executed,  intended  to  convey  or  incumber  the  land  of  the  wife,  was 
valid.  Goshorn  v.  Purcell,  11  Ohio,  K  S.  641.  Also,  an  act  was  held  valid  which 
prohibited  injunctions  on  account  of  errors  and  irregularities  in  certain  proceedings 
pending,  and  gave  a  special  remedy.  Miller  v.  Graham,  17  Ohio,  N.  S.  1. 

It  was  held  in  California  that  a  ratification  of  an  invalid  ordinance  does  not  oper- 
ate, by  relation,  to  make  such  ordinance  go"od  from  its  enactment,  but  only  from  the 
enactment  of  the  curative  statute ;  and  thus,  consequently,  an  invalid  ordinance, 
having  required  ten  days  notice  of  a  sale,  and  the  confirmatory  statute  being  passed 
only  one  hour  before  the  sale  took  place,  the  sale  was  void.  McCracken  v.  San 
Francisco,  16  Cal.  591. 


LEGISLATIVE  POWER.  145 

• 

priety  of  the  judicial  interference,  and  have,  without  contest  or 
reluctance,  made  their  action  conform  to  the  decisions  of  the 
courts.  So  in  Vermont,  an  act  .of  the  Assembly,  releasing  a 
debtor  imprisoned  on  execution  at  the  suit  of  a  party,  from  his 
imprisonment,  and  freeing  his  body  from  arrest  for  a  limited 
time,  has  not  the  characteristics  of  a  law,  and  is  void.  And  the 
court  say,  "  A  prescribed  rule  of  civil  conduct,  is  the  correct  and 
universally  approved  definition  of  municipal  law."  *  So  in  the 
same  State,  a  special  act  of  the  Legislature,  granting  to  a  party 
the  privilege  of  an  appeal  from  a  decision  of  the  commissioner 
on  claims  of  an  insolvent  estate,  after  the  time  allowed  by  law 
for  taking  appeals  in  such  cases,  is  void,  "  as  being  in  the  nature 
of  a  sentence  or  decree  rather  than  a  law,  wholly  retrospective 
in  its  operation,  and  taking  away  a  vested  right."  f  So  in  the 
same  State,  the  Legislature  has  been  held  to  have  no  power  to 
pass  an  act  authorizing  a  probate  court  to  renew  a  commission 
appointing  commissioners  upon  the  estate  of  a  deceased  person, 
after  the  commission  has  been  closed,  and  after  the  expiration 
of  the  time  limited  by  the  general  law  for  its  renewal.  J  So  in 
Massachusetts,  where  the  Declaration  of  Rights  declares  (Art. 
20)  that  the  power  of  suspending  the  laws  or  the  execution  of 
the  laws,  ought  never  to  be  exercised  but  by  the  Legislature  or 
by  authority  derived  from  it,  to  be  exercised  in  such  particular 
cases  only  (which  means  upon  such  particular  laws)  as  the  Leg- 
islature shall  expressly  provide  for, — it  has  been  held,  that  a 
resolve  of  the  Legislature,  empowering  a  judge  of  probate  to 
take  an  administration  bond  in  a  mode  differing  from  that  pre- 
scribed by  the  general  laws  of  the  commonwealth,  is  not  im- 
perative; and  that  if  it  were,  it  would  be  unconstitutional.  | 

So  in  Tennessee,  an  act  authorizing  a  party  to  prosecute  a 
suit  in  the  name  of  a  deceased  plaintiff,  without  taking  out  let- 
ters of  administration,  has  been  held  void.  The  act,  it  was 
said,  takes  away  from  some  their  vested  rights  and  gives  them 
to  others,  changes  the  nature  of  obligations,  and  dispenses  with 

*  Ward  v.  Barnard,  1  Aik.  121;  Keith  v.  general  act  of  the  same  kind  \a  void.     Hill 

Ware,  2  Verm.  175,  decides  the  same  point ;  v.  Town  of  Sunderland,  3  Verm.  507. 

see,  also,  Lyman  v.  Mower,  2  Verm.  517 ;  and  ±  Bradford  v.  Brooks,  2  Aik.  284. 

Kendall  v.  Dodge,  3  Verm.  361.  j  Picquet,  App't,  5  Pick.  65.      See  also 

f  Staniford  v.  Barry,  1  Aik.  315.    So  a  Davison  v.  Johonnot,  7  Met.  389. 

10 


140  LEGISLATIVE  POWER. 

• 

the  liabilities  which  all  others  in  similar  situations  would  lie 
under.*  So  in  Vermont,  an  act  granting  an  appeal  beyond  the 
time  allowed  by  law,  is  a  decree  rather  than  a  law,  and  void.f 

So  an  act  of  divorce  giving  alimony  to  the  wife,  has  been 
declared  to  be  an  exercise  of  judicial  powers,  and  void.J  Legis- 
lative divorces,  like  acts  of  attainder,  are  of  English  origin ;  and 
both  equally  result  from  a  disregard  of  the  true  limits  of  legis- 
lation. As  we  shall  see  hereafter,  in  this  country  attainders 
are  absolutely  prohibited,  and  statutory  divorces  are  coming  to 
be  viewed  with  almost  equal  disfavor. 

So  an  act  by  a  State  Legislature  declaring  that  a  widow  is 
entitled  to  dower,  is  a  judicial  determination,  and  void.||  So 
an  act  of  a  State  Legislature  authorizing  a  party  to  sell  so  much 
of  the  lands  of  a  deceased  person  as  would  be  sufficient  to  raise 
a  given  sum,  and  directing  the  proceeds  to  be  applied  to  the 
extinguishment  of  certain  claims  against  the  estate  of  the  de- 

o  o  » 

ceased,  is  a  judicial  act,  and  as  such  unconstitutional  and  void.^[ 
In  a  case  where  a  statute  of  limitations  had  run  against  a 
demand,  an  act  was  passed  allowing  the  plaintiff  to  commence 
and  prosecute  his  suit  in  the  same  way  and  manner  as  he  might 
or  could  have  done  if  the  same  had  been  commenced  within  the 
time  prescribed  by  law ;  but  the  court  gave  judgment  notwith- 
standing the  law,  on  the  ground  that  the  power  of  dispensing 
with  the  general  law  in  particular  cases,  was  not  vested  in  the 
Legislature.**  In  Maine,  it  has  been  decided  that  the  granting 
by  the  Legislature  of  a  new  trial  after  the  time  for  appeal  was 
elapsed,  is  a  judicial  act  and  void.ft  So  in  Indiana,  it  was  held 
that  the  allowance  of  a  new  trial  was  a  judicial  act,  and  that 
an  act  of  the  Legislature  granting  one,  was  unconstitutional  and 
void.JJ  And  the  Supreme  Court  of  New  York  has  well  said, 
"  The  Legislature  has  no  right  to  determine  facts  touching  the 
rights  of  individuals.!  | 

*  Officer  v.  Young,  5  Yerg.  320.  a  new  trial  after  the  term  of  appealing  had 

|  Bates  v.  Kimball,  2  Chip.  77.  elapsed,  it  was  held  to  he  constitutional  on 

\  Crane  v.  Meginnis,  1  Gill  <fe  J.  463.  the  ground  that  the  usage  of  that  State  sup- 

|  Edwards  v.  Pope,  3  Scam.  465.  ported  it,  and  that  the  usage  was  to  be  taken 

T  Lane  T.  Dorman,  3  Scam.  238.  as  evidence  of  its  judicial  law.  Calder  et 

**  Holden  v.  James  Admor,  11  Mass.  396.  uxor  v.  Bull,  3  Call.  386;  1  Peters  Cond.  R. 

ff  Lewis  v.  Webb,  3  Greenleaf,  326 ;  Dur-  172. 

ham  v.  Lewiston,  4  Greenleaf.  140.     See  also          \\  Young  T.  The  State  Bank,  4  Indiana, 

Davis  v.  Menasha,  21  Wise.  491.     But  where  301. 

nnactof  the  Legislature  of  Connecticut  gran  ted  1 1|  Parmelee  v.  Thompson,  7  Hill,  77. 


LEGISLATIVE  POWER.  147 

We  Lave  next  to  consider  a  class  of  cases  where  legislative 
bodies  attempt  to  deal  with  private  rights  of  property  by 
authorizing  sales,  by  changing  or  divesting  titles.  It  is  con- 
ceded that  the  Legislature,  in  cases  of  necessity  arising  from  the 
infancy,  insanity,  or  other  incompetency  of  those  in  whose  be- 
half its  acts  are  sought,  has  power  to  authorize  by  general  laws 
the  sale  of  private  property  for  other  than  public  uses,  and  that 
without  the  consent  of  the  owner ;  and  on  this  principle  there 
are,  in  almost  all  the  States  of  the  Union,,  general  statutes 
authorizing  guardians  or  administrators,  on  proper  application, 
to  sell  the  property  of  infants  or  decedents,  when  the  welfare 
of  the  infant  or  the  true  interest  of  the  estate  appears  to  require 
it.  And  the  passage  even  of  a  private  act  authorizing  an  ad- 
ministratrix to  sell  real  estate  for  the  payment  of  debts,  it  being 
proved  that  the  estate  was  insolvent,  has  been  held  by  the 
Supreme  Court  of  the  United  States  to  be  within  the  com- 
petency of  the  Legislature,  and  not  to  be  a  judicial  proceeding  ; 
and  that  although  there  was  a  general  law  on  the  same  subject. 
It  was  in  that  case  said,  "  The  general  law  was  passed  from  the 
knowledge  which  the  Legislature  had  of  its  expediency  and 
necessity.  The  special  law  was  passed  from  a  knowledge  of  its 
propriety  in  the  particular  case.  *  The  Legislature  regu- 

lates descents  and  the  conveyance  of  real  estate.  To  define  the 
rights  of  debtor  and  creditor  is  their  common  duty.  The  whole 
range  of  remedies  lie  within  their  province."*  On  this  subject, 
however,  there  is  considerable  conflict  between  the  views  of 
the  judiciary  in  the  respective  States.  In  Massachusetts,  a  re- 
solve of  the  Legislature  authorizing  the  guardian  of  a  lunatic  to 
sell  his  real  estate  and  apply  the  proceeds  to  the  payment  of 
debts,  has  been  held  valid.f  And  so,  in  the  same  State,  a  re- 
solve of  the  Legislature  authorizing  a  guardian  to  sell  the  real 
estate  of  his  ward,  notwithstanding  a  general  power  of  the 
same  kind  resided  in  the  courts,  was  held  to  be  a  valid  law.J 
But  in  New  Hampshire,  the  court  has  given  as  its  opinion,  that 
the  Legislature  can  not  authorize  a  guardian  of  minors,  by  a 
special  act  or  resolve,  to  make  a  valid  conveyance  of  the  real 

*  Watkins    v.    Holman,    16    Peters,    25          f  Davison  v.  Johonnot,  7  Met.  388. 
and  61.  j  Rice  v.  Parkman,  16  Mass.  326. 


148  LEGISLATIVE  POWER. 

estate  of  his  wards,  on  the  ground  that  it  is  a  judicial  act.* 
And  in  Tennessee,  an  act  authorizing  a  guardian  to  sell  land  of 
his  ward,  the  proceeds  to  be  assets  for  the  payment  of  debts, 
was  held  to  be  void  on  the  same  ground.  "  It  is  difficult,"  says 
the  court,  "  to  perceive  how  an  act  which  determines  that  the 
property  of  a  party  is  liable  for  a  given  debt,  and  that  it  shall 
be  sold  for  the  payment  of  that  debt,  is  not  a  judicial  act ;  and 
yet  in  substance,  that  is  the  case  before  us.  It  is  true  the  sale 
is  authorized  for  the  payment  of  debts  generally ;  but  that  can 
make  no  difference.  It  is  the  same  thing  in  principle,  whether 
there  be  ten  creditors  or  only  one."f 

Notwithstanding  the  weight  to  which  the  judicial  opinions 
of  Massachusetts  and  of  the  highest  federal  tribunal  are  justly 
entitled,  I  can  entertain  no  doubt  that  the  decisions  which 
deny  the  propriety  of  legislative  interference  in  these  special 
cases,  are  founded  on  the  true  principle.  There  is  no  difficulty 
in  making  general  laws  for  the  administration  of  property  in 
all  cases ;  and  to  these  general  laws,  and  to  their  application 
by  judicial  tribunals,  individual  cases  should  be  left.  A  legis- 
lative body  is,  from  its  character,  organization,  and  habits  of 
business,  entirely  incompetent  to  pass  discreetly  upon  questions 
involving  private  rights;  and  unless  stringent  rules  prevent 
their  interposition,  it  is  impossible  to  say  how  much  fraud,  in- 
justice, and  oppression  may  be  perpetrated  under  the  guise  of 
law. 

There  is  still  another  class  of  cases,  of  this  or  an  analogous 
kind,  where — when  by  reason  of  unforeseen  contingencies, 
estates  created  by  will  or  deed  have  become  insufficient  bene- 
ficially to  manage  the  property  to  which  they  relate,  and  it  is 
evident  that  no  injury  or  injustice  can  be  done — the  Legisla- 
ture is  considered  competent  to  enlarge  the  powers  of  the 
person  in  the  actual  enjoyment  of  the  property.  So  in  case  of 
a  devise  in  trust  for  life  to  a  woman,  remainder  to  her  issue, 
with  power  of  appointment  to  her  by  will,  and  the  age  of 
bearing  children  having  passed,  it  is  supposed  competent  for 
the  Legislature  to  enlarge  the  power  to  lease,  on  the  ground 
that  the  estate  being  but  for  life,  the  property  cannot  be  ad- 

*  Opinion,  4  New  Hamp.  572.  f  Jones  v.  Perry,  10  Terg.  59. 


LEGISLATIVE  POWER.  149 

vantageously  used,  and  that  no  one  can  possibly  be  injured  by 
the  permission.  So  in  Pennsylvania,  a  private  act  of  Assembly 
authorizing  the  guardians  of  infant  children,  the  title  to.  whose 
real  estate  is  vested  in  the  guardians,  to  convey  the  estate  to  a 
person  with  whom  the  parent  of  the  children,  before  his  death, 
contracted  to  sell  it,  is  valid.  "  A  power,"  says  the  court,  "  to 
supply  the  want  of  trustees,  to  enable  some  person  to  com- 
plete defective  titles,  instead  of  and  for  the  use  of  infants  and 
others,  must  exist  somewhere  in  every  government."  But 
the  power  of  the  Legislature  has  been  held  to  be  limited  to 
cases  which,  on  their  face,  show  a  necessity  of  this  nature,  and 
that,  if  neither  the  statute  show  any  such  fact,  nor  proof  is 
offered  of  such  a  state  of  things,  an  act  interfering  in  any  way 
with  a  private  right  of  private  property  without  the  owner's 
consent,  will  be  void.  So  in  New  York,  in  a  case  already 
noticed,  lands  were  devised  to  trustees  for  the  use  of  the 
testator's  daughter  for  life,  with  remainder  in  fee  to  certain 
parties  named  in  the  will ;  and  during  the  life  of  the  daughter 
a  statute  was  passed  authorizing  the  trustees  to  sell  the  lands, 
out  of  the  proceeds  to  pay  their  commissions,  &c.,  <fec.,  and  to 
invest  the  surplus  upon  the  trusts  declared  in  the  will — the 
general  power  of  the  Legislature  was  not  denied ;  but  the  act 
was  held  void  upon  the  ground  of  no  necessity  appearing  on 
the  face  of  the  statute,  or  in  any  way,  that  the  interests  of  the 
remaindermen  should  be  thus  disposed  of.f  Indeed,  except  in 
very  special  cases,  the  power  of  the  Legislature  to  interfere 
with  private  rights  of  property  has  been  generally  resisted, 
and  it  has  been  declared  that  the  right  to  make  laws  does  not 
embrace  the  authority  to  affect  or  interfere  with  private 
property,  except  where  the  right  of  eminent  domain  is  exercised 
as  provided  for  in  the  State  Constitutions.  So  in  a  case  in- 
volving the  validity  of  the  statutory  provisions  of  the  State  of 
New  York,  authorizing  a  private  road  to  be  laid  out  over  the 
lands  of  a  person  without  his  consent ;  Mr.  Justice  Bronson, 
after  admitting  the  right  to  take  private  property  for  public 
use,  making  just  compensation  therefor,  held  as  follows : 

*  Estep  v.  Hutchman,  14  Serg.  &  R.  435.     See  another  act  of  this  kind  in  New  York,  cn- 
f  Powers  v.  Bergen,  2  Seld.  358.     I  have    titled  An  act  relative  to  land  devised  by  Jas. 
already  commented  on  this  case,  ante,  p.  130.     Morris,  deceased.    Laws  of  1853,  c.  14. 


150  LEGISLATIVE  POWER. 

"  There  is  no  provision  in  the  Constitution  that  just  compensation  shall  be 
made  to  the  owner  when  his  property  is  taken  for  private  purposes ;  and  if  the 
power  exists  to  take  the  property  of  one  man  and  transfer  it  to  another,  it 
may  be  exercised  without  any  reference  to  compensation.  The  power  of 
making  bargains  for  individuals  has  not  been  delegated  to  any  branch  of  the 
Government ;  and  if  the  title  of  A  can  be,  without  his  fault,  transferred  to  B, 
it  may  as  well  be  done  without  as  with  a  consideration.  This  view  of  the 
question  is  sufficient  to  put  us  upon  the  inquiry  where  can  the  power  be  found 
to  pass  such  a  law  as  that  here  under  consideration.  It  is  not  to  be  presumed 
that  such  a  power  exists,  and  those  whx>  set  it  up  should  tell  us  where  it  may 
be  found.  Under  our  form  of  government,  the  Legislature  is  not  supreme  ;  it 
is  only  one  of  the  organs  of  that  absolute  sovereignty  which  resides  in  the 
whole  body  of  the  people;  like  other  departments  of  government,  it  can  only 
exercise  such  powers  as  have  been  delegated  to  it,  and  when  it  steps  beyond 
that  boundary,  its  acts,  like  those  of  the  most  humble  magistrate  in  the  State 
who  transcends  his  jurisdiction,  are  utterly  void.  Where,  then,  shall  we  find  a 
delegation  of  power  to  take  the  property  of  A  and  give  it  to  B,  either  with  or 
without  compensation  ?  Only  one  clause  in  the  Constitution  can  be  cited  in 
support  of  the  power,  and  that  is  the  first  section  of  the  first  article,  where  the 
people  have  declared  that  'The  legislative  power  of  the  State  shall  be  vested  in  a 
Senate  and  Assembly'  It  is  readily  admitted  that  the  two  houses,  subject  only 
to  the  qualified  negative  of  the  Governor,  possess  all  the  legislative  power  of 
this  State ;  but  the  question  immediately  presents  itself —  What  is  that  legis- 
lative power,  and  how  far  does  it  extend  ?  Does  it  reach  the  life,  liberty,  or 
property  of  the  citizen  who  is  not  charged  with  a  transgression  of  the  laws, 
and  when  the  sacrifice  is  not  demanded  by  a  just  regard  for  the  public  welfare  ? 
*  *  *  The  security  of  life,  liberty,  and  property,  lies  at  the  foundation  of 
the  social  compact ;  and  to  say  that  this  grant  of  '  legislative  power  '  includes 
the  right  to  attack  private  property,  is  equivalent  to  saying  that  the  people 
have  delegated  to  their  servants  the  power  of  defeating  one  of  the  great  ends 
for  which  governments  were  established.  If  there  was  not  one  word  of  quali- 
fication in  the  whole  instrument,  I  should  feel  great  difficulty  in  bringing  my 
mind  to  the  conclusion  that  the  clause  under  consideration  had  clothed  the 
Legislature  with  despotic  power  ;  and  such  is  the  extent  of  their  authority  if 
they  can  take  the  property  of  A,  either  with  or  without  compensation,  and  give 
it  to  B.  The  '  legislative  power  of  this  State '  does  not  reach  to  such  an  un- 
warrantable extent.  Neither  life,  liberty,  nor  property,  except  when  forfeited 
by  crime,  or  when  the  latter  is  taken  for  public  use,  falls  within  the  scope  of 
the- power."  * 

We  thus  find  that  practice  and  experience  are  gradually 
supplying  the  definitions  which  the  State  Constitutions  omit. 

*  Taylor  v.  Porter,  4  Hill,  140.     See  the  tion  of  the  phrase  "  legislatiye  power."    He 

case  cited  with   approbation   in   Powers   v.  rather  makes  his  judgment  depend  on  the 

Bergen,  2  Sel.  358.     But  as  we  have  already  true  application  of  the  clauses  "law  of  the 

seen,  ante,  p.  128,  Mr.  Justice  Bronson  does  land,"  and  "  due  process  of  law." 
not  rest  his  decision  merely  on  this  construe- 


WHAT   IS   A   LAW?  151 

It  is,  in  truth,  extremely  difficult  to  define  with  any  precision, 
the  exact  nature  of  a  law.  Omnis  definitio  in  jure  civili 
periculosa  est /  parum  est,  enim,  ut  non  subverti  posset*  says 
the  Digest;  and  this  is  eminently  true  of  the  subject  before 
us.  Laws  are  usually  intended  for  future  cases ;  but  we  shall 
see  hereafter  that  they  are  often  rightly  and  necessarily  retro- 
spective. They  are  in  one  sense  general  and  uniform ;  but  in 
others  they  are  strictly  local  and  partial.  They  usually  affect 
public  interests ;  but  they  often  relate  only  to  private  objects. 
So  that  any  attempt  to  define,  by  precise  terms,  the  boundaries 
of  the  legislative  duties,  would  probably  occasion  difficulties 
greater  than  those  resulting  from  the  present  imperfect  nomen- 
clature. The  Supreme  Court  of  the  United  States  has  well 
said :  "  It  is  difficult  to  draw  a  line  that  shall  show  with  pre- 
cision the  limitation  of  powers  under  our  form  of  government. 
The  executive,  in  acting  upon  claims  for  services  rendered,  may 
be  said  to  exercise,  if  not  in  form,  in  substance,  a  judicial 
power.  And  so,  a  court  in  the  use  of  a  discretion  essential 
to  its  existence,  by  the  adoption  of  rules  or  otherwise,  may 
be  said  to  legislate.  A  Legislature,  too,  in  providing  for 
the  payment  of  a  claim,  exercises  a  power  in  its  nature 
judicial."  f 

We  may,  however,  perhaps,  deduce  as  correct  conclusions 
from  the  decided  cases  which  we  have  thus  far  examined : 

First.  That  a  law  must  receive  its  final  sanction  and  enact- 
ment from  the  Legislature,  and  that  the  trust  of  the  popular 
representatives  can  neither  be  returned  to  the  people,  nor  dele- 
gated to  any  other  power. 

Second.  That  a  statute  which  dispenses  in  favor  of  some 
particular  individual,  with  the  general  rules  governing  similar 
cases,  does  not  come  within  the  rightful  attributes  of  legislative 
power,  and  is  not  to  be  regarded  as  a  law. 

Third.  That  a  statute  which  seeks  to  affect  or  influence  the 
determination  of  any  private  contested  i*ight,  is  for  the  same 
reasons  equally  vicious  and  void. 

Fourth.  That  a  statute  which,  without  some  controlling 
public  necessity  and  for  public  objects,  seeks  to  affect  or  inter- 

*  L.  202,  ff.  de  Reg.  Jur.  f  Watkins  v.  Holman,  16  Peters,  25. 


152  BILLS   OF   RIGHTS. 

fere  with  vested  rights  of  private  property,  is  equally  beyond 
the  true  limits  of  the  legislative  power. 

To  all  these  rules,  the  ingenious  mind  will  readily  suggest 
exceptions ;  but  while  they  do  not  claim  the  accuracy  of  defini- 
tions, they  will  serve,  perhaps,  as  an  approximation  to  correct 
ideas  upon  the  subject.  The  correctness  of  the  last  rule  turns, 
indeed,  on  the  meaning  attached  to  the  words  " vested  riglit" 
It  is  very  certain  that  the  Legislature  cannot  deprive  a  man  of 
real  property  in  which  he  has  either  a  vested  or  a  contingent 
right ;  but  there  is,  unfortunately,  a  large  class  of  cases  where, 
by  statutes  changing  remedies,  repealing  laws,  and  retroactive 
enactments,  positive  and  absolute  rights  are  taken  away.  Thus, 
in  the  case  of  a  law  abolishing  arrest  and  imprisonment  for 
debt,  the  remedy  is  in  the  power  of  the  Legislature ;  and  the 
law  may,  if  the  Legislature  sees  fit,  be  made  retroactive,  and  in 
that  case  the  right  of  the  plaintiff  against  the  bail,  unless  he  is 
absolutely  fixed,  is  completely  defeated.  Cases  of  this  and  an 
analogous  kind  frequently  present  great  suffering  and  great  loss, 
resulting  from  reckless  legislation ;  still  the  right  of  the  Legis- 
lature to  interfere  has  been  repeatedly  affirmed,  and  is  generally 
recognized.  Until  some  clearer  notion  shall  be  had  of  the 
precise  extent  to  which  legislative  bodies  may  act  upon  rights 
of  property,  the  whole  subject  must  be  considered  as  in  a  state 
of  very  unsatisfactory  uncertainty.  All  that  we  can  do  is,  as  I 
have  said,  to  approach  correct  results. 

In  considering  the  subject  of  the  supremacy  of  the  Legisla- 
ture in  this  country,  and  the  power  of  the  judiciary,  we  have 
thus  far  discussed  the  question  as  turning  on  the  organization 
of  the  three  great  branches  of  government ;  but  other  consider- 
ations present  themselves,  growing  out  of  the  different  terms  of 
the  State  Constitutions  in  other  particulars ;  for  though  gener- 
ally alike,  they  differ  in  their  details.  Some  confine  themselves 
to  the  mere  organization  of  the  Government  and  the  distribu- 
tion of  powers,  imposing  such  limitations  as  is  seen  fit,  on.  the 
Legislature ;  but  generally  they  contain,  in  the  shape  of  a  dec- 
laration of  rights  or  bill  of  rights,  the  enumeration  of  certain 
great  political  truths  essential  to  the  existence  of  free  govern- 


JUDICIAL   POWER.  153 

ment.  As,  for  instance,  in  Maine  :*  "  All  men  are  born  equally 
free  and  independent,  and  have  certain  natural,  inherent,  and 
individual  rights,  among  which  are  those  of  enjoying  and  de- 
fending life  and  liberty,  acquiring  property,  and  protecting 
property,  and  pursuing  and  obtaining  safety  and  happiness. 
All  power  is  inherent  in  the  people ;  all  free  governments  are 
founded  on  their  authority  and  instituted  for  their  benefit ;  and 
they  have,  therefore,  an  inherent  and  indefeasible  right  to  in- 
stitute government,  and  to  alter,  reform,  or  totally  change  the 
same  when  their  safety  and  happiness  require  it."  And  so  in 
Illinois,  the  same  principles  are  announced  in  the  Declaration 
of  Rights,  and  it  is  added  that  "  a  frequent  recurrence  to  the 
fundamental  principles  of  civil  government  is  absolutely  ncees- 
sary  to  preserve  the  blessings  of  liberty  ,"f  So  in  the  Pennsyl- 
vania Constitution,  the  9th  Article,  in  order  that  the  general 
good  and  essential  principles  of  liberty  and  free  government 
may  be  recognized  and  unalterably  Established,  declares  the 
rights  of  the  people  substantially  in  the  language  of  the  Maine 
Constitution,  and  goes  on  to  say,  §  26,  "  that  in  order  to  guard 
against  transgressions  of  the  high  powers  which  we  have 
delegated,  we  declare  that  every  thing  in  this  article  is  excepted 
out  of  the  general  powers  of  government,  and  shall  forever 
remain  inviolate."  J 

These  great  truths  will  thus  be  found  set  out  in  a  large 
majority  of  the  State  Constitutions.  They  are  of  no  little  value 
as  safeguards  against  errors  and  injustice;  but  I  think  they 
must  be  regarded  rather  as  guides  for  the  political  conscience 
of  the  Legislature,  than  as  texts  of  judicial  duty.  Important 
as  they  are,  still  they  are  expressed  in  such  general  terms  as 
necessarily  to  admit  of  great  and  prominent  exceptions.  All 
men  are  born  "  free  and  independent ; "  but  we  keep  Africans 
in  slavery,  Indians  in  subjection,  minors  in  absolute  tutelage 
till  twenty  one,  and  married  women  in  a  state  of  quasi-depend- 
ence  all  their  lives.  As  .to  the  enjoyrntnt  of  life*  and  liberty, 
property,  and  the  pursuit  of  happiness,  all  these  rights  are 

*  Cons.  Decl.  of  Rights,  §§  1  and  2.  \  Sharpless  v.  The  Mayor  of  Philad.,  21 

f  See  in  Illinois,  the  13th  Article  0f  the    Penn.  147. 
Constitution  ;  Black  well  on  Tax  Titles,  p.  15. 


154  -JUDICIAL   POWER. 

daily  interfered  with  by  the  Legislature,  without  scruple,  for 
the  common  welfare.  I  suppose  it  must  be  admitted  that,  in  a 
judicial  sense,  these  clauses  could  not  easily  be  made  available. 
The  landmarks  of  the  legislative  and  judicial  authority  are 
rather  to  be  found  in  the  division  of  power,  contained  in  the 
Constitution,  among  the  three  great  branches  of  government, 
and  the  specific  limitations  imposed  by  the  instrument  on  the 
law-making  branch,  than  in  these  general  declarations  of  polit- 
ical truths. 

Having  thus  attempted  to  consider  the  true  meaning  of  the 
term  law,  and  the  general  language  of  our  State  Constitutions, 
we  recur  to  the  question :  "  Shall  the  judiciary  on  any  ground 
of  general  morality  and  justice,  exercise  any  power  over  legis- 
lative acts,  independently  of  the  express  restrictions  in  our  Con- 
stitutions, or  necessarily  resulting  from  them  ? 

It  will  be  observed  that  the  principal  arguments  in  favor  of 
the  doctrine,  that  the  judiciary  may  arrest  acts  of  legislation  on 
the  ground  that  they  are  unjust  or  immoral,  rest  on  two  points: 
first,  that  there  should  be  no  absolute,  despotic,  uncontrollable 
power  in  a  free  State ;  and  secondly,  that  there  are  certain  prin- 
ciples of  natural  justice  which  not  even  the  Legislature  can  be 
permitted  to  disregard. 

I  cannot  but  think  both  these  arguments  fallacious.  If,  by 
the  assertion  that  absolute  power  is  inadmissible,  it  is  meant 
to  insist  that  there  should  be  no  single  supreme  authority  in 
which  all  the  functions  of  government  center,  and.  to  which 
all  the  agents  of  the  Government  are  subordinate,  like  that  of 
the  Roman  empire  in  its  latter  stages,  the  proposition  is  a  mere 
truism.  The  bare  enumeration  of  the  division  of  powers  under 
our  system,  sufficiently  answers  the  complaint.  But  if  it  is 
meant  to  assert  that  there  should  be  no  absolute  power  in  each 
department  of  the  Government,  then  it  is  so  far  from  being  true, 
that,  on  the  contrary,  without  such  power  no  government 
could  regularly  exist  an  hour ;  all  would  be  conflict  and  con- 
fusion. It  cannot  be  denied  that,  practically,  despotic  power 
must  somewhere  exist  in  every  system  that  assumes  to  order 
and  regularity.  Appeals  must  teiyninate,  controversies  must 
cease,  discussions  must  end,  and  the  business  of  life  proceed.  To 


JUDICIAL    POWER.  155 

effect  this,  it  is  indispensable  that  there  be  somewhere  lodged,  in 
regard  to  the  operations  of  every  department  of  government,  a 
supreme,  inexorable  power  whose  decision  is  conclusive ;  and 
whether  the  system  be  that  of  a  monarchy,  an  oligarchy,  a  democ- 
racy, or  that  mixed  form  under  which  we  live,  such  power  will 
always  be  found.  In  the  very  case  before  us,  what  is  the  result 
of  the  reasoning  but  to  claim  for  the  judiciary  the  very  absolutism 
which  is  denied  to  the  Legislature  ?  If  the  statute  is  conclusive, 
then  the  Legislature  is  absolute ; — granted.  But  if  the  judg- 
ment of  the  court  is  final, — and  to  be  efficacious,  it  must  be  so, — 
then  you  encounter  the  same  difficulty  at  only  one  remove. 

The  other  argument  appears  equally  erroneous.  It  is  very 
plausible  to  say  that  the  Legislature  ought  not  to  be  permitted 
to  do  anything  flagrantly  unjust,  as,  to  take  the  property  of  A. 
and  give  it  to  B,  to  make  a  man  judge  in  his  own  case,  or  to 
commit  any  other  enormity.  But  in  every  case  there  are  dis- 
puted questions  of  fact  as  well  as  of  principle ;  and  the  real 
point  is  whether  the  Legislature  shall  decide  on  the  nature  of 
the  public  exigency  and  the  rights  of  its  subjects,  or  whether 
the  judiciary  shall  assume  that  power.  It  is  conceded  that  the 
power  of  the  Legislature  must  be  confined  to  "  making  laws." 
But  the  very  words  of  our  State  Constitutions  which  declare 
them  the  law-making  power,  exclude  the  judiciary  from  any 
share  in  it :  and  such  share  they  will  undoubtedly  have  if  they 
are  at  liberty  to  refuse  to  execute  a  statute,  on  the  ground  that 
it  conflicts  with  their  notions  of  morality  or  justice.  The  very 
vagueness  of  the  power  is,  moreover,  fatal  to  it.  Constitutional 
provisions  may  be  ambiguous  ;  the  doctrine  of  interpretation  is 
vague;  but  these  branches  of  the  judicial  authority  are  subject 
to  some  tests,  and  can  be  circumscribed  within  some  limits. 
But  who  will  undertake  to  decide  what  are  the  principles  of 
eternal  justice  ?  And  who  can  pretend  to  fix  any  limits  to  the 
judicial  power,  if  they  have  the  right  to  annul  the  operations  of 
the  Legislature  on  the  ground  that  they  arc  repugnant  to  natural 
right  ? 

There  may  be — there  always  will  be — questions  not  only  as 
to  the  expediency  but  the  justice  of  laws.  But  questions  of 
public  policy  and  State  necessity  are  not  meant  to  be  assigned 


156  JUDICIAL   POWER. 

to  the  domain  of  the  courts ;  and  I  cannot  but  think  it  unfor- 
tunate for  the  real  influence  of  the  judiciary,  that  this  authority 
has  ever  been  claimed  for  them.  The  right  of  construction,  the 
right  of  applying  constitutional  restrictions,  are  vast  powers, 
which  it  will  always  require  great  sagacity  and  intelligence  to 
exercise.  Let  the  judiciary  rest  contented  with  its  acknowledged 
prerogatives,  and  not  attempt  to  arrogate  an  authority  so  vague 
and  so  dangerous  as  the  power  to  define  and  declare  the  doc- 
trines of  natural  law  and  of  abstract  right. 

It  will  be  seen  on  examining  the  authorities  which  I  now 
proceed  to  cite,  that  the  views  here  urged  are  those  of  many  of 
our  soundest  judges  and  legal  writers :  "  Strong  expressions 
may  be  found  in  the  books,"  says  Mr.  Justice  Cowen,  in  the 
Supreme  Court  of  New  York,  "  against  legislative  interference 
with  vested  rights ;  but  it  is  not  conceivable  that,  after  allowing 
the  few  restrictions  to  be  found  in  the  federal  and  State  Consti- 
tutions, any  further  bounds  can  be  set  to  legislative  power  by 
written  prescription."*  Kent  says,f  "  Where  it  is  said  that  a 
statute  is  contrary  to  natural  equity  or  reason,  or  repugnant  or 
impossible  to  be  performed,  the  cases  are  understood  to  mean 
that  the  court  is  to  give  them  a  reasonable  construction.  They 
will  not  readily  presume  out  of  respect  and  duty  to  the  law- 
giver, that  every  unjust  or  absurd  consequence  was  within  the 
contemplation  of  the  law ;  but  if  it  should  happen  to  be  too 
palpable  to  meet  with  but  one  construction,  there  is  no  doubt 
in  the  English  law,  of  the  binding  efficacy  of  the  statute.''^ 

In  a  case  where  it  was  contended  that  an  act  of  the  Legis- 
lature of  New  Jersey  was  void  as  against  natural  justice,  Mr. 
Justice  Baldwin,  of  the  Supreme  Court  of  the  United  States, 
used  this  language : — "  We  cannot  declare  a  legislative  act  void 
because  it  conflicts  with  our  opinions  of  policy,  expediency,  or 
justice.  We  are  not  the  guardians  of  the  rights  of  the  people  of 
the  State,  unless  they  are  secured  by  some  constitutional  provision 
which  comes  within  our  j  udicial  cognizance.  The  remedy  for  un- 
wise or  oppressive  legislation,  within  constitutional  bounds,  is 
by  an  appeal  to  the  justice  and  patriotism  of  the  representatives 

*  Butler  v.  Palmer,  1  Hill,  324.  \  See  also,  1  Com.  p.  488. 

f  1  Com.  p.  408. 


JUDICIAL    POWER.  157 

of  the  people.  If  this  fail,  the  people  in  their  sovereign  capacity, 
can  correct  the  evil;  but  courts  cannot  assume  their  rights." 
*  *  "There  is  no  paramount  and  supreme  law  which  defines 
the  law  of  nature,  or  settles  those  great  principles  of  legislation 
which  are  said  to  control  State  Legislatures  in  the  exercise  of 
the  powers  conferred  on  them  by  the  people  in  the  Constitution."* 
The  same  conclusion  is  arrived  at  in  a  very  able  opinion  of 
Mr.  Senator  Verplanck,  in  the  Court  of  Errors  of  New  York. 
He  says, — 

*'  It  is  difficult,  upon  any  general  principles,  to  limit  the  omnipotence  of  the 
sovereign  legislative  power  by  judicial  interposition,  except  so  far  as  the  express 
words  of  a  written  Constitution  give  that  authority.  There  are,  indeed,  many 
dicta,  and  some  great  authorities,  holding  that  acts  contrary  to  the  first  princi- 
ples of  right,  are  void.  The  principle  is  unquestionably  sound  as  the  gov- 
erning rule  of  a  Legislature,  in  relation  to  its  own  acts,  or  even  those  of  a  pre- 
ceding Legislature.  It  also  affords  a  safe  rule  of  construction  for  courts,  in  the 
interpretation  of  laws  admitting  of  any  doubtful  construction,  to  presume  that 
the  Legislature  could  not  have  intended  an  unequal  and  unjust  operation  of  its 
statutes.  Such  a  construction  ought  never  to  be  given  to  legislative  language, 
if  it  be  susceptible  of  any  other  more  conformable  to  justice ;  but  if  the  words 
be  positive  and  without  ambiguity,  I  can  find  no  authority  for  a  court  to  vacate 
or  repeal  a  statute  on  that  ground  alone.  But  it  is  only  in  express  constitu- 
tional provisions,  limiting  legislative  power  and  controlling  the  temporary  will 
of  a  majority  by  a  permanent  and  paramount  law,  settled  by  the  deliberate 
wisdom  of  the  nation,  that  I  can  find  a  safe  and  solid  ground  for  the  authority 
of  courts  of  justice  to  declare  void  any  legislative  enactment.  Any  assumption 
of  authority  beyond  this  would  be  to  place  in  the  hands  of  a  judiciary,  powers 
too  great  and  too  undefined  either  for  its  own  security  or  the  protection  of 

private  rights." 

******** 

"  Believing  that  we  are  to  rely  upon  these  and  similar  provisions,  as  the 
best  safeguards  of  our  rights,  as  well  as  the  safest  authorities  for  judicial  di- 
rection, I  cannot  bring  myself  to  approve  of  the  power  of  courts  to  annul  any 
law  solemnly  passed,  either  on  an  assumed  ground  of  its  being  contrary  to 
natural  equity,  or  frgm  a  broad,  loose,  and  vague  interpretation  of  a  constitu- 
tional provision  beyond  its  natural  and  obvious  sense.  There  is  no  provision 
of  the  old  State  Constitution  that,  in  my  understanding  of  it,  so  limits  the 
power  of  the  Legislature  over  the  property  of  its  citizens  as  to  enable  a  court  to 
set  aside  these  statutes,  or  titles  acquired  under  them,  on  the  ground  of  uncon- 
stitutional enactment."  f 

In  Pennsylvania,  on  the  same  -principle,  it  has  been  held 
that  the  courts  have  no  control  over  the  legislative  power  of 

*  Bennett  v.  Boggs,  1  Bald.  74  and  75.  f  Cochran  v.  Van  Surley,  20  Wend.  381. 


158  JUDICIAL   POWER. 

taxation,  however  unequally  or  oppressively  it  may  be  exer- 
cised ;*  and  Gibson,  C.  J.,  in  delivering  the  judgment  of  the 
court,  said,— 

"  In  every  American  State,  the  people,  in  the  aggregate,  constitute  the  sov- 
ereign, with  no  limitation  of  its  power  but  its  own  will,  and  no  trustee  of  it  but 
its  own  appointee.  But  this  sovereign,  from  the  nature  of  its  structure,  is  un- 
able to  wield  its  power  with  its  own  hands ;  whence  delegation  of  it  to  agents, 
who  constitute  the  immediate  government.  But  it  is  a  postulate  of  a  State 
Constitution,  which  distinguishes  it  from  the  federal,  that  all  the  power  of  the 
people  is  delegated  by  it,  except  such  parts  of  it  as  are  specifically  reserved  ; 
and  the  whole  of  it  is,  without  exception,  vested  in  the  constitutional  dispensers 
of  the  people's  money.  As  regards  taxation,  there  is  no  limitation  of  it. 
Equality  of  contribution  is  not  enjoined  in  the  bill  of  rights,  and  probably  be- 
cause it  was  known  to  be  impracticable."  *  *  "If  equality  were  practicable,  in 
what  branch  of  the  government  would  power  to  enforce  it  reside1?  Not  in  the 
judiciary,  unless  it  were  competent  to  set  aside  a  law  free  from  collision  with 
the  Constitution,  because  it  seemed  unjust.  It  could  interpose  only  by  over- 
stepping the  limits  of  its  sphere  ;  by  arrogating  to  itself  a  power  beyond  its 
province ;  by  producing  intestine  discord  ;  and  by  setting  an  example  which 
other  organs  of  the  government  might  not  be  slow  to  follow.  It  is  its  peculiar 
duty  to  keep  the  first  lines  of  the  Constitution  clear,  and  not  to  stretch  its 
power  in  order  to  correct  legislative  or  executive  abuses.  Every  branch  of  the 
government,  the  judiciary  included,  does  injustice  for  which  there  is  no  remedy, 
because  everything  human  is  imperfect.  The  sum  of  the  matter  is,  that  the 
taxing  power  must  be  left  to  that  part  of  the  government  which  is  to  exer- 
cise it."f 

In  South  Carolina  a  similar  doctrine  has  been  held,  in  re- 
gard to  taking  private  property,  though  with  some  division  of 
opinion. J  And  when  we  come  to  consider  the  subject  of  con- 
stitutional restrictions  on  legislative  power,  in  detail,  we  shall 
find  that  the  idea  of  any  judicial  power  over  the  equity  or 
equality  of  taxation  has  been  generally  denied.  |  So  in  a  late 
case  in  Pennsylvania,  the  whole  subject  was  reviewed,  in  an 
able  and  elaborate  opinion,  by  Mr.  Chief  Justice  Black,  of  the 
Supreme  Court ;  and  he  said  ; — 

"  We  are  urged  to  hold  that  a  law,  though  not  prohibited,  is  void  if  it  violate 
the  spirit  of  our  institutions,  or  impairs  any  of  those  rights  which  it  is  the  ob- 
ject of  a  free  government  to  protect ;  and  to  declare  it  unconstitutional  if  it  be 
wrong  and  unjust.  But  we  cannot  do  this.  It  would  be  assuming  a  right  to 

*  Kirby  v.  Shaw,  7  Harris,  Penn.  R.  258.  ||  People  v.  Mayor  of  Brooklyn,  4  Coras, 

f  Kirby  v.  Shaw,  7  Harris  (Perm.)  R.  258.    423 ;  Town  of  Guilford  v.  Cornell,  18  Barb. 
\  State  v.  Dawson,  3  Hill  R.  100.  615. 


JUDICIAL    POWER.  159 

change,  the  Constitution ;  to  supply  what  we  might  conceive  to  be  its  defects  ; 
to  fill  up  every  casus  omissus ;  and  to  interpolate  into  it  whatever,  in  our 
opinion,  ought  to  have  been  put  there  by  its  framers.  The  Constitution  has 
given  us  a  list  of  the  things  which  the  Legislature  may  not  do.  If  we  extend 
that  list,  we  alter  the  instrument ;  we  become  ourselves  the  aggressors,  and 
violate  both  the  letter  and  the  spirit  of  the  organic  law  as  grossly  as  the  Legis- 
lature possibly  could.  If  we  can  add  to  the  reserved  rights  of  the  people,  we 
can  take  them  away  ;  if  we  can  mend,  we  can  mar;  if  we  can  remove  the  land- 
marks which, we  find  established,  we  can  obliterate  them  ;  if  we  can  change  the 
Constitution  in  any  particular,  there  is  nothing  but  our  own  will  to  prevent  us 
from  demolishing  it  entirely.  The  great  powers  given  to  the  Legislature  are 
liable  to  be  abused.  But  this  is  inseparable  from  the  nature  of  human  institu- 
tions. The  wisdom  of  man  has  never  conceived  of  a  government  with  power 
sufficient  to  answer  its  legitimate  ends,  and  at  the  same  time  incapable  of  mis- 
chief. No  political  system  can  be  made  so  perfect  that  its  rulers  will  always 
hold  it  to  the  true  course.  In  the  very  best,  a  great  deal  must  be  trusted  to 
the  discretion  of  those  who  administer  it.  In  ours,  the  people  have  given  larger 
powers  to  the  Legislature,  and  relied,  for  the  faithful  execution  of  them,  on  the 
wisdom  and  honesty  of  that  department,  and  on  the  direct  accountability  of  the 
members  to  their  constituents.  -There  is  no  shadow  of  reason  for  supposing 
that  the  mere  abuse  of  power  was  meant  to  be  corrected  by  the  judiciary."* 

In  this  conflict  of  opinion  we  cannot  safely  pronounce  the 
question  settled  on  authority ;  but  I  think,  as  a  matter  of 
reason,  that  we  may  safely  hold,  First,  That  the  Legislature  is 
to  confine  itself  to  its  function  of  "  making  laws ;"  and  we  have 
considered  the  general  features  and  characteristics  of  a  law. 
The  imperfection  of  language  does  not  permit  us  to  define  with 
absolute  precision  the  meaning  of  the  term  "  law"  but  each 
case  must  depend  on  its  peculiar  features. 

Second,  That  it  is  the  right  and  duty  of  the  judiciary  to  re- 
press and  confine  the  legislative  body  within  the  true  limits  of 
the  law-making  power ;  but  that  they  have  no  right  whatever 
to  set  aside,  to  arrest,  or  nullify  a  law  passed  in  relation  to  a 
subject  within  the  scope  of  the  legislative  authority,  on  the 
ground  that  it  conflicts  with  their  notions  of  natural  right,  ab- 
stract justice,  or  sound  morality,  (a) 

*  Sharpless  v.  The  Mayor,  <fec.,  21  Penn.  Cranch,  87 ;  Bloodgood  v.  Mohawk  and  Hud- 
147,  162.  See  this  subject  also  discussed  in  son  R.  R.  Co.,  18  Wend.  9  ;  Terrett  v.  Taylor, 
Braddee  v.  Brownfield,  2  Watts  &  Sera:.  271;  9  Cranch,  43;  Bowman  v.  Middleton,  1  Bay, 
Harvey  v.  Thomas,  10  Watts,  63;  Calder  v.  252;  Bonaparte  v.  Camden  and  Amboy  Rail- 
Bull,  3  Dallas,  386  ;  Fletcher  v.  Peck,  6  road  Company,  1  Baldw.  C.  C.  R.  205. 

(a)  The  Supreme  Court  disclaims  the  right  to  pass  upon  political  questions. 
Georgia  v.  Stanton,  6  Wall.  50. 


160  RETROSPECTIVE  STATUTES. 

In  the  strict  order  of  the  argument  that  we  are  pursuing,  I 
should  now  turn  to  the  judicial  power  of  construction;  but, 
closely  connected  with  the  subject  which  we  have  just  consid- 
ered, is  one  which  I  can  in  no  other  place  so  fitly  discuss,  that 
of  retroactive  or  retrospective  statutes,  the  power  to  pass  which 
has  been  frequently  denied  on  the  ground  that  they  conflict 
with  true  notions  of  justice  and  right.  I  shall  here  examine 
the  question,  and  then  finally  arrive  at  the  subject  of  inter- 
pretation. 

Retrospective  or  Retroactive  Statutes. — A  statute  which  takes 
away  or  impairs  any  vested  right  acquired  under  existing  laws, 
or  creates  a  new  obligation,  or  imposes  a  new  duty,  or  attaches  a 
new  disability  in  respect  to  transactions  or  considerations  al- 
ready past,  is  to  be  deemed  retrospective  or  retroactive.*  The 
power  of  a  Legislature  to  pass  laws  having  such  an  effect,  has 
often  been  denied  by  philosophical  writers.  Puffendorf  says, 
"  A  law  can  be  repealed  by  the  law-giver ;  but  the  rights  which 
have  been  acquired  under  it  while  it  was  in  force,  do  not  there- 
by cease.  It  would  be  an  act  of  absolute  injustice  to  abolish 
with  a  law  all  the  effects  which  it  had  produced."f  The  Civil 
Law  says,  "  Leges  et  constitutions  futuris  cerium  est  dare  for- 
mam  negotiis,  non  ad  facta  pr ester  ita  revocari,  nisi  nominatim 
et  de  prceterito  tempore  et  adhuc  pendentibus  negotiis  cautum 
sit"%  From  the  civil  law,  Bracton  adopted  the  same  maxim. 
"  Nova  constitutio  futuris  formam  debet  imponere,  non  prceter- 
itis"  Lord  Bacon  says,  in  his  quaint  and  poetical  style,  but  in 
a  more  guarded  manner  :  "  Leges  giiaz  retrospiciunt  raro,  magna 
cum  cautione,  adhibendce  /  neque  enim  placet  Janus  in  legibus. 
Cavendum  tamen  est  ne  convellantur  res  judicatce.  Leges  decla- 
ratorias  ne  ordinato,  nisi  in  casibus  iibi  leges  cum  justitia  re- 
trospicere  possint"\  And  one  of  the  standard  writers  of  our 
law  says,  it  is  in  general  true  that  no  statute  is  to  have  a  retro- 
spect beyond  the  time  of  its  commencement.^ 

From  text-writers,  the  maxim  has  been  incorporated  into 
codes  of  law.  The  French  code  contains  a  positive  provision 

*  Society  for  Prop,  of  Gospel  v.  Wheeler,  |  De  Aug.  Sclent.  Lib.  viii,  c.  3  ;  Apbor. 

2  Gallison,  105.  47,  51. 

f  Droit  de  la  Nat.  L.  i,  c.  6,  §  6.  T[  Bacon,  Abr.  Statute, 

t  Cod.  L.  i,  Tit.  xiv,  §  7. 


RETROSPECTIVE  STATUTES.  161 

that  laws  are  made  only  for  future  cases,  and  can  have  no  re- 
trospective effect.  "  The  law  directs  for  the  future  cases  only ; 
it  has  no  retrospective  effect." '  So,  the  Constitution  of  New 
Hampshire  f  declares,  "  Retrospective  laws  are  highly  injurious, 
oppressive,  and  unjust.  No  such  laws  should,  therefore,  be  made, 
either  for  the  decision  of  civil  cases  or  the  punishment  of  offences." 
The  principle  has,  indeed,  been  generally  adhered  to  with 
great  steadiness,  both  in  England  and  in  this  country,  (a)  So 
in  a  case  under  the  statute  of  frauds,  which,  as  originally  passed 

*  La  loi  ne  dispose  que  pour  1'avenir,  elle          \  Part  i,  §  23. 
n'a  point  d'effet  retroactif.     Code  Civil,  §  2. 

(a)  General  Pule. — The  general  rule  is  that  statutes  shall  be  construed  as  prospect- 
ive. The  following  are  some  illustrations  of  such  construction  applied  to  particular 
statutes :  Prescribing  new  penalties  on  defaulting  taxpayers,  Bartruff  v.  Reney,  15 
Iowa,  257  ;  taking  away  defense  of  usury  in  favor  of  lonafide  indorsers,  North  Bridge- 
water  Bank  v.  Copeland,  7  Allen,  139 ;  requiring  new  promise  to  be  in  writing  to 
take  case  out  of  the  statute  of  limitations,  Richardson  v.  Cook,  37  Vt.  599 ;  for- 
bidding banks  paying  interest  on  deposits,  Hannum  v.  Bank  of  Tenn.  1  Cold. 
(Tenn.),  398 ;  a  statute  as  to  execution,  &c.,  of  wills,  Taylor  v.  Mitchell,  57  Penn. 
St.  209  ;  abolition  of  slavery  by  the  State  Constitution  was  held  not  to  take  away  a 
pending  action  of  trover  for  conversion  of  a  slave,  Williams,  Adm.  v.  Johnson's 
Adrn.  30  Md.  500.  For  further  instances  where  statutes  were  held  to  be  prospective, 
see  lie  Miles'  Will,  27  Beav.  579 ;  State  v.  Auditor,  41  Mo.  25 ;  Finney  v.  Ackernian, 
21  Wise.  268  ;  Abington  v.  Duxbury,  105  Mass.  287 ;  Amsbry  v.  Hinds,  48  N.  Y.  57  ; 
per  contra,  statutes  were  construed  as  retroactive  in  Cook  v.  McChristian,  4  Cal.  23  ; 
Smith  v.  Van  Gilder,  26  Ark.  527. 

Statutes  are  not  to  be  construed  as  retrospective  unless  by  the  language  thereof 
they  are  clearly  intended  so  to  be.  Young  v.  Hughes,  4  H.  &  N.  76  ;  Williams  v. 
Smith,  4  H.  &  N.  558 ;  Martin  v.  State,  22  Tex.  214 ;  Aurora,  &c.  I.  Co.  y.  Holt- 
house,  7  In  d.  59;  Bond  v.  Munro,  28  Geo.  597;  Gerry  v.  Stoneham,  1  Allen,  319; 
Parsons  v.  Payne,  26  Ark.  124. 

It  is  not  enough  that  general  terms  are  employed  broad  enough  to  cover  past  trans- 
actions ;  thus  a  law  permitting  a  removal  of  the  family  residence  from  a  homestead, 
without  rendering  it  subject  to  execution,  &c.,  was  held  not  to  apply  to  past  judg- 
ment liens.  Seamans  v.  Carter,  15  Wise.  548.  And?  it  has  been  said  that  statutes, 
however  general  in  their  terms,  are  not  to  be  considered  retrospective  unless  expressly 
so  declared.  Berley  v.  Rampacher,  5  Duer,  181 ;  but  this  is  undoubtedly  a  too 
strong  statement  of  the  rule,  for  statutes  have  been  held  retrospective  which  did  not 
contain  any  express  declaration  that  they  were  so,  e.  g.,  the  legal  tender  act  of  the  U.  S. 
Hepburn  v.  Griswold,  8  Wall.  603. 

But  undoubtedly  statutes  are  to  be  construed  as  prospective  only,  if  possible. 
Smith  v.  Auditor-General,  20  Mich.  398. 

Vested  Rights. — When  the  effect  of  a  retroactive  construction  would  be  to  de- 
stroy a  vested  right,  e.  g.,  to  cut  off  an  accepted  bid  for  certain  work,  which  ac- 
ceptance was  legally  binding  by  the  existing  laws,  the  construction  must  be  pro- 
spective. Matter  of  Prot.  Epis.  School,  58  Barb.  161. 

Statutes  of  Limitation  may  act  retrospectively,  if  they  do  not  destroy  or  unreason- 
11 


162  RETROSPECTIVE  STATUTES. 

(29  Car.  II,  c.  3),  enacted  that  no  action  should  be  brought  on 
any  parol  promise,  on  and  after  the  24th  June,  1677,  an  effort 

ably  impair  rights  of  action.  Thus,  such  a  statute  applicable  to  "  all  actions  of  debt 
•which  shall  be  sued  or  brought  at  any  time  after  this  act  shall  go  into  effect,"  was 
held  to  apply  retroactively  to  causes  of  action  already  accrued,  provided  such  con- 
struction would  leave  a  reasonable  time  after  the  passage  of  the  law  for  the  bringing 
of  an  action.  Fiske  v.  Briggs,  6  R.  I.  557 ;  and  an  amendment  limiting  the  time 
within  which  judgment  liens  could  be  enforced  to  five  years,  was  held  to  operate 
retrospectively,  when  ample  time  was  left  for  the  enforcement  of  the  existing  liens, 
Burwell  v.  Tulles,  12  Minn.  572. 

Dower. — A  statute  changing  the  rale  as  to  dower,  was  held  not  to  be  retro- 
spective as  to  marriages  already  made,  but  when  death  ef  the  husband  occurs  after 
its  passage,  Noel  v.  Ewing,  9  Ind.  37 ;  but  otherwise,  as  said  by  way  of  a  dictum, 
when  the  land  was  sold  by  the  husband  before  the  statute.  Davis  v.  O'Ferrall,  4 
Greene  (la.),  168.  Where  by  the  law  in  force  at  the  time  of  a  foreclosure  sale,  the 
dower  of  the  mortgagor's  wife  was  not  barred  thereby,  and  a  subsequent  statute  was 
passed  before  the  husband's  death  limiting  the  wife's  dower  to  lands  which  the  hus- 
band bad  not  sold  during  his  lifetime,  that  is,  limiting  the  dower  to  lands  of  which 
the  husband  died  seized,  it  was  held  that  such  statute  cut  off"  the  wife's  dower  in. 
question.  Sturtevant  v.  Norris,  30  Iowa,  65.  This  and  similar  decisions  are  cer- 
tainly not  in  accordance  with  the  common-law  doctrine  of  dower  which  prevails  in 
many  States,  which  treats  the  wife's  dower  in  lands  owned  by  the  husband  as  an 
estate.  Undoubtedly  the  wife's  capacity  to  be  endowed  of  lands  to  ~be  acquired  by 
her  husband  may  be  taken  away  by  a  retroacting  statute,  because  a  mere  capacity  is 
not  property  nor  a  right  in  any  true  sense  of  the  word  ;  but  after  the  dower  has  once 
attached  to  any  land  of  the  husband,  when  the  common-law  doctrine  prevails,  it  can- 
not be  taken  away  by  statute,  although  it  is  inchoate,  without  violating  the  familiar 
constitutional  safeguards  of  property  and  personal  rights.  Inchoate  dower  is  so 
truly  an  estate  at  the  common  law,  that  nothing  but  the  wife's  act  can  bar  it ;  and 
the  decisions  cited,  and  some  other  similar  ones  must  have  proceeded  upon  a  theory 
of  dower  entirely  different  from  that  which  prevailed  at  the  common  law. 

Settlements  of  Paupers. — A  statute  shortening  the  period  of  residence  of  a  pauper 
necessary  to  confer  irremovability  was  held  retroactive  in  Salferd  v.  Manchester,  3  B. 
&  S.  599 ;  also  a  provision  enlarging  the  limits  of  residence  which  would  confer  the 
same  privilege,  Preston  v.  Blackburn,  3  B.  &  S.  793 ;  but  see  Abington  v.  Duxbury, 
105  Mass.  287. 

Amendatory  Statutes. — A  statute  amending  a  prior  one,  by  declaring  that  it 
shall  be  amended  so  as  to  read  in  a  given  manner,  has  no  retroactive  effect.  Ely  v. 
Holton,  15  N.  Y.  595 ;  Bay  v.  Gage,  36  Barb.  447. 

Explanatory  Statutes. — An  act  explaining  the  meaning  of  a  former  act,  does  not 
retroact  so  as  to  affect  the  rights  of  parties  in  proceedings  instituted  before  the  pas- 
sage of  the  later  statute.  McManning  v.  Farrar,  46  Mo.  376. 

Statutes  going  into  Effect  at  a  Future  Day. — Such  a  statute  is  prospective.  For 
example,  a  statute  prescribing  that  in  all  cases  of  partition  where  a  valuation  "  shall 
have  been  made,"  certain  results  shall  follow,  and  not  going  into  effect  until  a  future 
day,  will  be  held  not  to  apply  to  a  valuation  made  before  its  going  into  effect. 
Dewart  v.  Purdy,  29  Penn.  St.  113. 

Remedial  Statutes. — The  rule  against  retroactive  operation  has  been  applied  even 
to  remedial  statutes;  e.  gr.,  a  statute  authorizing  supervisors  to  legalize  irregularities 
in  taxes  was  held  to  apply  only  to  future  taxes.  People  v.  Supervisors,  &c.,  6S 


RETROSPECTIVE  STATUTES.  163 

was  made  to  extend  its  operation  to  a  promise  made  in  1676  ; 
but  it  was  held  that  the  statute  was  not  to  receive  a  retroactive 
effect ;  the  court  saying  that  it  would  be  a  great  mischief  to 
explain  it  otherwise,  to  annul  all  promises  by  parol  before  that 
time,  upon  which  men  had  trusted  and  depended,  reckoning 
them  good  and  valid  in  law  ;  and  judgment  was  given  for  the 
plaintiff.*  So  again,  in  an  action  for  a  penalty  in  not  paying  a 
stamp  duty.  After  verdict,  the  defendant  moved  to  stay  judg- 
ment, urging  that  he  was  entitled  to  relief  on  the  ground  that 
he  had  paid  the  duty  under  a  clause  of  the  act  which  discharged 
parties  who  had  incurred  penalties  if  they  paid  their  duties  be- 
fore a  certain  time ;  and  the  question  being  whether  the  act  re- 
lated to  actions  commenced  before  its  passage,  the  King's  Bench 
denied  the  motion,  Lord  Mansfield  saying,  "  It  can  never  be  the 

*  Helmore  v.  Shuter,  2  Show.  17. 

Barb.  83  ;  and  see  Hart  v.  State,  40  Ala.  32 ;  State  v.  Bradford,  36  Geo.  422.  But  a 
statute  giving  municipalities  the  right  to  sell  land  for  taxes,  has  been  held  to  apply 
to  past  delinquencies,  on  the  ground  that  it  was  remedial,  Haskell  v.  Burlington,  30 
Iowa,  232 ;  and  a  statute  providing  that  certain  irregularities  shall  not  affect  the 
validity  of  tax  sales,  applies  to  a  sale  for  prior  delinquencies.  Sully  v.  Kuehl,  30 
Iowa,  274.  Where  reliance  is  had  on  a  retroactive  curative  statute  to  bar  a  right,  the 
terms  of  the  statute  must  be  very  clearly  applicable.  Chalker  v.  Ives,  55  Penn.  St.  81. 

Procedure. — Some  cases  have  held  that  procedure  in  cases  pending  at  the  passage 
of  a  new  practice  act,  or  the  adoption  of  a  new  code,  must  be  governed  by  the  old 
law.  Chancy  v.  State,  31  Ala.  342 ;  The  Steamboat  Farmer  v.  McCraer,  31  Ala.  659  ; 
Mochlan  Township  Road,  30  Penn.  St.  156.  But  the  weight  of  authority  is  un- 
doubtedly the  other  way.  A  statute  regulating  procedure  acts  retrospectively,  so 
far  as  to  control  the  proceedings  in  pending  cases,  Kimbray  v.  Draper,  Law  R.  3 
Q.  B.  160;  whatever  relates  to  the  conduct  of  the  trial  is  retrospective,  Hoa  v.  Le- 
franc,  18  La.  Ann.  393 ;  a  statute  as  to  new  trials  applies  to  pending  cases,  Donner 
v.  Palmer,  23  Cal.  40,  and  see  Bensby  v.  Ellis,  39  Cal.  309.  It  was  held  that  a  statute 
giving  the  right  of  appeal  would  not  apply  to  pending  proceedings,  unless  the  in- 
tent was  clear,  Boston,  &c.  R.  R.  v.  Cilley,  44  N.  H.  578,  but  see  McNamara  v.  Min- 
nesota R.  R.  12  Minn.  388.  It  was  also  held  that  an  act  shortening  the  time  of  no- 
tice in  mortgage  foreclosure  cases  did  not  affect'  pending  actions,  it  not  being  ex- 
pressly made  retrospective.  Hopkins  v.  Jones,  22  Ind.  310. 

To  ~be  strictly  Construed. — A  retrospective  statute  is  to  be  strictly  construed.  Thus 
where  a  statute  of  limitations  provides  that  it  should  not  apply  to  actions  com  - 
menced  or  causes  of  action  accrued,  and  a  subsequent  statute  made  it  applicable  to 
causes  of  action  accrued  at  its  passage,  it  was  held  that  it  did  not  extend  to  actions 
commenced  at  its  passage.  Hedger  v.  Rennaker,  3  Mete.  (Ky.)  255.  Though  a 
statute  is  plainly  retroactive  by  its  terms,  the  court  will  not  enforce  a  penalty  for 
non-compliance  with  its  requirements  at  a  time  when  it  was  not  in  existence.  Mc- 
Cowan  v.  Davidson,  43  Geo.  480. 


164  RETROSPECTIVE   STATUTES. 

true  construction  of  this  act,  to  take  away  these  vested  rights 
and  punish  the  innocent  pursuer  with  costs." '  "  All  laws," 
says  Blackstone,  "should  be  made  to  commence  infuturo,  and 
be  notified  before  their  commencement."  f 

The  effort  of  the  English  courts  appears,  indeed,  always  to 
be  to  give  the  statutes  of  that  kingdom  a  prospective  effect 
only,  unless  the  language  is  so  clear  and  imperative  as  not  to 
admit  of  doubt.  "  The  principle,"  says  the  English  Court  of 
Exchequer,  "is  one  of  such  obvious  convenience  and  justice, 
that  it  must  always  be  adhered  to  in  the  construction  of  stat- 
utes, unless  in  cases  where  there  is  something  on  the  face  of  the 
enactment  putting  it  beyond  doubt  that  the  Legislature  meant 
it  to  operate  retrospectively."  J  This  principle  may  have  been 
lost  sight  of  in  some  cases,  |  but  has,  on  the  whole,  been  stead- 
ily adhered  to.  So,  where  a  statute  (8  and  9  Vic.  c.  109,  8 
Aug.  1845)  enacted  that  all  contracts  and  agreements  by  way 
of  gaming  or  wagering,  shall  be  null  and  void,  and  that  no  suit 
shall  be  brought  or  maintained  in  any  court  upon  any  wager, 
it  was  held  that  the  statute  was  not  to  receive  a  retroactive 
construction  so  as  to  defeat  a  suit  on  a  wager  commenced  be- 
fore the  statute  passed.^f 

But  it  also  appears  to  be  clearly  settled  in  England,  that 
the  rule  to  give  statutes  a  prospective  operation,  is  one  of  con- 
struction merely ;  that  it  will  yield  to  the  intention  of  the  Legis- 
lature, if  clear  beyond  doubt ;  and  that  the  only  question  is, 
whether  the  retroactive  intention  is  sufficiently  expressed  ;**  and 
this  is  in  entire  harmony  with  the  English  doctrine  which  we 
have  already  considered,  that  Parliament  is  supreme,  and  that 
there  is  no  constitutional  check  on  the  supremacy  of  the  law- 
making  power. 

In  this  country,  the  same  opposition  to  giving  statutes  a  re- 
troactive effect,  has  been  manifested ;  and  such  is  the  general 
tenor  of  our  decisions.  There  are,  indeed,  here,  two  classes  of 
retroactive  laws  absolutely  forbidden  by  the  federal  Constitu- 

*  Couch  q.  tain  v.  Jeffries,  4  Burr,  2460.  f  Moon  v.  Durden,  2  Exch.  22  ;  and  also, 

f  Com.  i,  p.  46.  Edmonds  v.  Lawley,  6  M.  <fe  W.  285 ;  and 

$  Moon  v.  Burden,  2  Exchequer  R.  22.  Ashburnham,  2  Atk.  36. 
I   Towler  v.    Chatterton,   6   Bing.    258 ;          **  Moon    v.    Durden,   2    Exch.    22,  per 

Freeman  v.  Moyes,  1  Ad.  <fe  Ell.  338 ;  Pickup  Parke,  B. 

v.  Wharton,  2  C.  &  M.  401 ;  Grant  v.  Kemp, 

Id.  636. 


RETROSPECTIVE  STATUTES.  165 

tion.  That  great  charter  of  our  rights  and  liberties  declares 
(Art.  i,  sec.  10)  that  no  State  shall  pass  any  ex  post  facto  law, 
or  law  impairing  the  obligation  of  contracts.  We  shall  have 
occasion  hereafter  to  consider  this  clause  more  particularly ;  but 
we  may  here  notice  that  the  term  ex  post  facto  applies  only  to 
criminal  laws.*  Many  of  the  State  Constitutions  also  contain 
clauses  prohibiting  ex  post  facto  laws  ;  but  this  phrase  has,  I 
believe,  been  uniformly  held  to  apply  only  to  criminal  legisla- 
tion. And  we  have  already  noticed  that  the  obligation  of  con- 
tracts does  not  include  the  remedy.  With  these  modifications, 
however,  the  power  of  the  federal  tribunals  has  been  steadily 
exercised,  and  State  laws  of  a  criminal  nature  having  a  retro- 
active effect,  or  laws  in  any  way  impairing  the  obligation  of 
contracts,  are  held  to  be  void,  and  their  operation  arrested  by 
the  Government  of  the  United  States.  It  is,  however,  equally 
well  settled,  that  a  law  is  not  unconstitutional  under  the  Con- 
stitution merely  because  it  is  retrospective  in  its  terms.  A  con- 
flict arose  in  the  State  of  Pennsylvania,  as  to  lands  held  under 
what  were  called  Connecticut  titles ;  and  in  1825,  on  a  case 
growing  out  of  this  question,  the  Supreme  Court  of  Pennsyl- 
vania held  that  the  relations  between  landlord  and  tenant 
could  not  exist  between  persons  holding  under  such  a  title. 
Immediately  after  this  decision,  the  Legislature  of  Pennsylvania 
passed  an  act  by  which  it  was  enacted  that  the  relation  of  land- 
lord and  tenant  should  exist,  and  be  held  as  fully  between 
Connecticut  settlers  and  Pennsylvania  claimants,  as  between 
other  citizens  of  the  commonwealth ;  and  this  act,  the  Supreme 
Court,  in  a  subsequent  case,  held  to  be  retrospective  in  its 
effect.  A  writ  of  error  was  taken  to  the  Supreme  Court  of  the 
United  States ;  but  the  judgment  was  affirmed, — the  court  say- 
ing that  the  act  did  not  impair  the  obligation  of  the  contract. 
"  It  is  said  to  be  retrospective.  Be  it  so ;  but  retrospective 
laws  which  do  not  impair  the  obligation  of  contracts  or  partake 
the  character  of  ex  post  facto  laws,  are  not  condemned  or  for- 
bidden by  any  part  of  the  Constitution."f 

We  have  already  J  considered  the  retrospective  effect  of  re- 

*  Calder  and  Wife  v.  Bull  and  Wife,  3  Ball.  f  Satterlee  v.  Matthewson,  2  Peters,  380. 

386  ;  Dash  v.  Van  Kleeck,  7  Johnson,  p.  477.  \  Ante,  p.  114. 


1G6  RETROSPECTIVE   STATUTES. 

pealing  statutes,  and  the  efforts  that  have  been  made  to  limit 
that  operation.  It  has  often,  indeed,  been  said  that  statutes 
can  never  be  made  to  work  retrospectively  so  as  to  defeat  or 
destroy  a  vested  right ;  but  we  have  already  had  occasion  to 
question  the  correctness  of  this  proposition  as  a  general  rule  in 
regard  to  the  operation  of  statutes.  What  is  a  vested  right  of 
property  ?  Some  vested  rights  are  protected  by  the  federal 
Constitution,  others  by  the  general  limitation  of  the  law-making 
power  to  which  I  have  just  referred.  Other  rights  again,  al- 
though created  by  positive  law,  are  considered  entirely  under 
the  control  of  legislation,  and,  indeed,  treated  as  not  being 
vested  at  all.  The  same  difficulty  of  drawing  the  precise  line, 
and  of  laying  down  any  definition,  exists  here  that  we  have  al- 
ready noticed  in  regard  to  the  term  law.  The  inherent  diffi- 
culty of  the  subject  can  only  be  mastered  by  a  frequent  refer- 
ence to  principles,  and  a  familiar  acquaintance  with  adjudged 
cases.  But  we  may  affirm  as  a  general  rule,  that — with  the 
exception  of  those  cases  outside  of  the  true  limits  of  the  law- 
making  power,  of  those  cases  growing  out  of  the  restrictions  of 
the  federal  Constitution ;  and  excepting  also  where,  as  in  New 
Hampshire,  the  States  themselves  have  adopted  a  positive  pro- 
hibition— it  is  in  this  country  considered  competent  for  the 
State  Legislatures  to  pass  laws  having  a  retrospective  effect ;  the 
only  judicial  check  on  the  power  being  that  the  courts  refuse 
to  give  statutes  a  retroactive  construction  unless  the  intention 
is  so  clear  and  positive  as  by  no  possibility  to  admit  of  any 
other  construction.  But,  on  the  other  hand,  it  is  equally  true 
that  they  are  greatly  discountenanced,  and  that  the  desire  and 
effort  of  the  courts  is  always  to  give  a  statute  a  prospective 
operation  only.  The  subject  was  considered  at  an  early  day  in 
the  State  of  New  York.  The  Supreme  Court  of  that  State,  in 
a  case  arising  on  the  construction  of  an  act  giving  prisoners 
charged  in  execution  certain  jail  liberties,  held  that  a  return 
or  recaption  before  suit  would  be  no  excuse  to  the  sheriff  in  an 
action  against  him  for  an  escape.*  Upon  this  Legislature  passed 
an  act  (5th  April,  1810,  33  Sess.  c.  187)  declaring  that  a  re- 
turn or  recaption  before  suit  brought  should  be  a  good  defence. 

*  Tillruan  v.  Lansing,  4  J.  R.  45. 


RETROSPECTIVE   STATUTES.  167 

An  action  was  brought  against  a  sheriff  for  an  escape,  in  which 
after  issue  joined,  the  act  in  question  having  been  passed,  it  was 
insisted  that  the  sheriff  was  entitled  to  the  benefit  of  the  stat- 
ute, on  the  ground  that  it  should  be  held  to  operate  retrospect- 
ively: and  it  was  also  strenuously  insisted  that  the  act  was  an 
explanatory  act,  and  that  if  it  was  in  any  way  competent  for 
the  Legislature  to  alter  the  law  retrospectively,  they  had  in  this 
case  done  it.  The  court  was  divided;  but  the  majority  held 
-that  the  plaintiff  had  a  vested  right  of  recovery ;  that  the  act 
was  not  expressly  retrospective ;  that  the  statute  would,  if  re- 
trospectively construed,  operate  unjustly,  as  it  would  defeat  a 
suit  already  commenced  upon  a  right  already  vested,  and  thus 
punish  an  innocent  party  with  costs,  as  well  as  divest  him  of  a 
right  previously  acquired  under  the  existing  law.  Thompson, 
J.,  said,  "  It  may  in  general  be  truly  observed  of  retrospective 
laws  of  every  description,  that  they  neither  accord  with  sound 
legislation  nor  the  fundamental  principles  of  the  social  compact. 
How  unjust  then  the  imputation  against  the  Legislature  that 
they  intend  a  law  to  be  of  that  description,  unless  the  most 
clear  and  unequivocal  expressions  are  adopted !"  Kent,  J., 
said,  "  I  think  it  can  be  shown  that  the  act  cannot  be  adjudged 
to  operate  either  as  a  new  rule  for  the  government  of  a  past 
case,  or  as  interpreting  a  former  statute  for  the  direction  of  the 
courts ;  and  I  should  be  unwilling  to  consider  any  act  so  in- 
tended, unless  that  intention  was  made  manifest  by  express 
words ;  because  it  would  be  a  violation  of  fundamental  prin- 
ciples, which  is  never  to  be  presumed."* 

So  again,  in  the  same  State,  more  recently,  it  has  been  held 
to  be  a  general  rule  that  a  statute  affecting  rights  and  liablities 
should  not  be  so  construed  as  to  act  upon  those  already  exist- 
ing. To  give  it  that  effect,  the  statute  should  in  terms  declare 
an  intention  so  to  act.f  So  again,  in  another  case,  the  court 
say,  "Notwithstanding  the  peculiar  phraseology  of  the  section 

*  Dash  v.  Van  Kleeck,  7  J.  R.  477.    Spen-  vised  Statutes  which  declares  that  all  actions 

cer  and  Yates  were  in  favor  of  the  retrospec-  upon  judgments  rendered  in  any  court  not 

tive  effect.     Kent,  Thompson,  and  Van  Ness  being  a  court  of  record,  shall  be  commenced 

united  in  the  judgment.      See  this  case  cited  within  six  years  next  after  the  cause  of  action 

in  Wood  v.  Oakley,  11  Paige,  400.  occurred,   does  not  apply  to  justices'  judg- 

f  Johnson  v.  Burrell,  2  Hill,  238.    In  this  ments  rendered  before  1830. 
-case  it  was  held  that  the  provision  of  the  Re- 


1G8  RETROSPECTIVE   STATUTES. 

relied  on  by  the  plaintiffs'  counsel,  we  think  it  ought  not  to  be 
so  considered  as  to, give  it  a  retroactive  effect."*  So  again,  in 
the  same  State,  a  statute  authorizing  a  writ  of  error  in  behalf 
of  the  people,  to  review  a  judgment  rendered  in  favor  of  a  de- 
fendant, has  been  held  not  to  authorize  such  writ  to  review  a 
judgment  rendered  prior  to  the  passing  of  the  statute,  f  and  J 
Mr.  Justice  Shankland,  in  another  recent  case,  well  calls  the 
maxim  which  I  have  above  cited  from  Bracton,  "  the  primary 
rule  for  the  interpretation  of  statutes." 

So  too.  in  Mississippi,  it  has  been  said  that  "  as  a  general 
rule  for  the  interpretation  of  statutes,  it  may  be  laid  down  that 
they  never  should  be  allowed  a  retrospective  operation  where 
this  is  not  required  by  express  command,  or  by  necessary  and 
unavoidable  implication.  Without  such  command  or  impli- 
cation, they  speak  and  operate  upon  the  future  only;  espe- 
cially should  this  rule  of  interpretation  prevail  when  the  effect 
and  operation  of  a  law  are  designed  apart  from  the  intrinsic 
merits  of  the  rights  of  parties  to  restrict  the  operation  of  those 
rights."  And  the  court  decided  that  the  act  of  that  State, 
passed  in  1846,  limiting  the  effect  of  foreign  judgments  against 
citizens  of  Mississippi,  to  three  years  from  the  rendition  thereof, 
could  have  no  effect  on  judgments  obtained  before  the  passage 
of  the  act ;  or  in  other  words,  that  it  was  not  to  be  construed 
retroactively,  and  that  a  judgment  recovered  in  Louisiana  in 
1844,  was  not  to  be  affected  by  it.  || 

So  in  Pennsylvania,  a  statute  allowing  a  writ  of  error  in 
cases  where  none  lay  before  the  passage  of  the  act,  has  been 
held  not  to  apply  a  judgment  obtained  before  the  act  was 
passed.  "  My  respect  for  the  Legislature,"  said  Eogers,  J.,  in 
delivering  the  opinion  of  the  court,  "  is  too  great  to  allow  me 
for  a  single  instant  to  suppose  that  they  designed  so  great  a 
wrong  as  by  a  retrospective  act,  to  make  that  right  which  was 
clearly  wrong.  But  granting  that  intention  to  be  clearly  ex- 

*  Bailey  v.  The  Mayor,  <fcc.,  7  Hill,  146 ;  f  The  People  v.  Carnal,  2  Selden,  463. 

and  it  was  held  that  the  third  section  of  the  i  Lawrence  v.  Miller,  2  Corns.  245,  251. 

act  passed  May  7tb,  1844,  authorizing  interest  |  Boyd  v.  Barrenger,  23  Miss.   R.   270; 

to  be  taxed  upon  verdicts,  <fec.  (Sess.  Laws  of  Garrett  v.  Beaumont,  24  Miss.  R.  377  ;  Mur- 

1844,  p.  508),  does  not  apply  to  verdicts  ren-  ray  v.  Gibson,  15  Howard,  U.  S.  R.  421. 
dered  before  the  act  was  passed,  but  is  to  be 
construed  prospectively. 


RETROSPECTIVE   STATUTES.  169 

pressed,  I  have  no  hesitation  in  saying  that  the  act  is  unconsti- 
tutional and  void.  The  Legislature  has  no  power,  as  has  been 
repeatedly  held,  to  interfere  with  vested  rights.  To  give  the 
property  of  A  to  B,  is  clearly  beyond  legislative  authority."  * 

In  Maine,  by  the  Constitution  of  which  State  the  right  is 
secured  to  every  citizen,  of  possessing,  acquiring,  and  enjoying 
property,  it  has  been  decided  that  a  statute  of  limitation  fixing 
the  time  within  which  actions  are  to  be  brought  for  the  recov- 
ery of  lands,  can  have  no  retroactive  effect  on  titles  existing 
when  it  was  passed ;  and  the  same  principle  was  applied  to  a 
disseizin  act  relating  to  the  mode  of  adverse  possession.f 

So  in  Vermont,  it  has  been  held  that  statutes  of  limitation 
are  not  to  have  a  retrospective  operation.^ 

In  1850,  the  Legislature  of  Connecticut  passed  an  act  declar- 
ing that  "  all  real  estate  conveyed  to  a  married  woman  during 
coverture,  in  consideration  of  money  or  other  property  acquired 
by  her  personal  services  during  such  coverture,  should  be  held 
by  her  to  her  sole  and  separate  use ; "  and  it  has  been  held  that 
the  statute  was  not  to  have  a  retrospective  effect.  "  The  pre- 
sumption is,"  said  the  court,  "  that  all  statutes  are  to  operate 
prospectively,  and  were  not  made  to  impair  vested  rights.  In 
some  cases,  statutes  may  have  a  retrospective  effect ;  yet,  such  a 
construction  is  never  to  be  given  to  them  unless  required  in  the 
most  explicit  terms."  || 

We  have  already  noticed  the  clause  in  the  Constitution  of 
New  Hampshire,  prohibiting  retrospective  legislation;  and  it 
seems  to  have  been  faithfully  carried  out.  So  an  act  of  the 
Legislature  repealing  a  statute  of  limitations,  is  void  with 
respect  to  all  actions  pending  at  the  time  of  the.  repeal,  and 
which  are  barred  by  the  statute. ^[  So,  in  the  same  State,  where 
a  statute  gives  a  penalty  incurred  under  it  to  an  individual  (as 
certain  militia  fines  to  an  officer  of  a  company),  the  right  to  a 
penalty  incurred  under  the  statute  in  a  civil  cause,  is  within  the 
meaning  of  the  clause  in  the  bill  of  rights  which  prohibits  the 

*  McCabe  v.  Emerson,  6  Har.  Penn.   R.  Drew,  5  Law  Reporter,  N.  S.  189;    Webster 

111.  v.  Cooper,  14  Howard,  U.  S.  R.  488. 

f  Proprietors   of   Kennebec  Purchase   v.  1  Wires  &  Peck  v.  Fair,  25  Vermont,  p.  41. 

Laboree  et  ah.,  2  Greenleaf  Rep.  275;  Orien-  j  Plumb  v.  Sawyer,  21  Conn.  351. 

tal  Bank  v.  Freese,  18  Maine  Rep.  109  ;  Aus-          *j[  Woart  v.  Winnick,  3  New  Hampshire, 

tin  v.  Stevens,  24  Maine  R.  520 ;   Preston  v.  473. 


170  RETROSPECTIVE  STATUTES. 

passing  of  retrospective  laws  for  the  decision  of  civil  causes ; 
and  the  right  of  such  individual  can  not  be  taken  away  by  a 
repeal  of  the  statute  under  which  the  penalty  was  incurred.* 

"We  have  thus  far  considered  cases  where  laws  have  been 
denied  a  retroactive  effect.  We  have  now  to  examine  the  con- 
verse class  of  decisions.  There  is,  indeed,  a  large  number  of 
cases  in  which  appeals  are  made  for  legislative  relief  or  assist- 
ance, in  which  it  would  be  very  injurious  to  assert  the  doctrine 
that  the  Legislature  is  incompetent  to  pass  laws  having  a  retro- 
active effect.  Such  are  laws  declaring  valid  acts  of  official  per- 
sons irregularly  elected;  amending  charters  of  incorporated 
companies ;  correcting  assessment  rolls  irregularly  made ;  ex- 
tending the  time  for  collection  of  taxes  or  for  reports  required 
by  lawT ;  altering  and  amending  judicial  procedure.  In  these, 
and  many  other  cases,  it  is  difficult  to  avoid  giving  the  acts  of 
the  Legislature  a  retroactive  effect ;  and  every  such  effect  must 
or  may  influence  injuriously  some  individual  case.  But  the  in- 
terests of  the  community  are  paramount.  These  cases  are  not 
treated  as  touching  vested  rights,  and  the  power  of  the  Legisla- 
ture is  admitted.  We  proceed  now  to  examine  cases  of  this 
kind  where  statutes  have  been  construed  retrospectively. 

It  has  been  said  in  Massachusetts,  that  the  Legislature  may 
constitutionally  enact  laws  to  alter  the  limits  of  prison  yards ; 
to  render  valid  and  legal  the  doings  of  public  officers ;  to 
confirm  the  acts  of  towns  and  other  corporations,  invalid  for 
some  informality,  although  by  such  enactments  individuals 
may  be  deprived  of  rights  previously  vested.f  So  in  the 
Supreme  Court  of  the  United  States,  it  has  been  said,  that 
"  every  law  that  takes  away  or  impairs  rights  vested  agreeably 
to  existing  laws,  is  retrospective,  and  is  generally  unjust,  and 
may  be  oppressive ;  and  it  is  a  good  general  rule,  that  a  law 
should  have  no  retrospect.  But  there  are  cases  in  which  lawrs 
may  justly,  and  for  the  benefit  of  the  community,  and  also  of 
individuals,  relate  to  a  time  antecedent  their  commencement."  J 

*  Dow  v.  Norris,  4  N.  H.  16.  the  court  decided  that  they  were  not  ex  post 

f  Davison  v.  Johonnot  et  al.,  7  Met.  389,  facto  laws,  nor  laws  impairing  the  obligation 

citing  Walter  v.  Bacon,  8  Mass.  468  ;  Patter-  of  contracts. 

son  v.  Philbrook,  9  Mass.  151,  and  Locke  v.  \  Per  Chase,  J.,  Calder  v.  Bull,  3  Dall. 

Dane,  9  Mass.  360.     These  last  are  all  cases  386,  391. 

on  statutes  changing  the  prison  limits;  and 


RETROSPECTIVE  STATUTES.  171 

In  New  York,  it  has  been  held,  that  when  the  rule  of 
compensation  for  attorneys  and  counselors  is  changed  by  the 
Legislature,  during  the  progress  of  a  suit,  the  costs  of  such 
suits  are  to  be  taxed  according  to  the  statute  in  force  at  its 
termination.  "It  is  competent,"  said  Mr.  Justice  Jewett, 
41  for  the  Legislature,  at  any  time  during  the  progress  of  a  suit, 
to  create  an  allowance  for  services  not  before  provided  for, 
and  to  increase  or  diminish,  or  wholly  abolish,  such  allowances 
as  existed  at  the  time  the  suit  was  commenced ; "  and  on  the 
ground  that  the  right  to  costs  is  created  by  and  depends 
wholly  on  statute,  and  that  it  does  not  become  fixed  till  the 
termination  of  the  suit,  the  statute  in  force  at  the  end  of  the 
litigation  was  held  to  be  conclusive.*  So  in  the  same  State, 
the  act  of  22d  October,  1779,  transferring  the  seignory  and 
escheat  from  the  crown  of  Great  Britain  to  the  people,  of  the 
State;  and  the  statute  of  tenures  (1787)  abolishing  military 
tenures,  and  converting  all  manorial  and  other  tenures  into 
free  and  common  socage,  took  effect  retrospectively,  and  oper- 
ated on  all  lands  and  tenures  held  under  colonial  grants,  from 
from  July,  1776.  f  So  when  a  statute  of  the  same  State, 
altering  the  common  law,  declared  that  a  failure  or  want  of 
consideration  might  be  set  up  by  way  of  defence  to  a  sealed 
instrument,  it  was  held  that  as  far  as  the  statute  went  only  to 
the  remedy,  it  might  be  applied  to  sealed  instruments  executed 
before  the  law  passed ;  but  that  as  regarded  the  obligation  of 
the  contract,  it  should  not  be  permitted  to  have  a  retroactive 
effect.  J  So  in  the  same  State,  it  has  been  held  that  retro- 
spective statutes  are  valid,  which  give  remedies  where  none 
existed  before,  for  defects  that  would  have  been  fatal  had  the 
Legislature  not  interfered,  and  given  a  perfect  remedy  by  cur- 
ing intervening  irregularities.  Thus  in  an  action  by  a  bank, 
incorporated  under  the  general  banking  law  of  New  York,  it 
appeared  that  the  certificate  of  incorporation  was  defectively 
proved  and  acknowledged;  that  the  defect  was  not  remedied 
until  several  years  afterwards  (1852),  by  an  act  declaring  that 

*  Supervisors  of  Onondaga  v.  Briggs,  3  \  Mann  v.  Eckford's  Ex'ors,  15  Wend. 

Penio,  173;  see  also,  People  v.  Herkimer,  C.  519;  Wilson  v.  Baptist  Education  Society  of 

P.  4  Wend.  210.  New  York,  10  Barb.  S.  C.  R.  308. 

f  De  Peyster  v.  Michael,  2  Seld.  467,  503. 


172  RETROSPECTIVE  STATUTES. 

the  bank  should  be  deemed  to  be  a  valid  corporation,  and  to 
have  been  duly  organized,  notwithstanding  the  original  error 
in  the  certificate ;  and  that  the  note  in  suit  was  made  before 
the  passage  of  the  act.  It  was  held,  however,  that  these  facts 
constituted  no  defence  to  the  suit ;  that  the  defendant  had  no 
vested  right  to  be  absolved  from  paying  the  money  which  he 
owed;  'that  a  remedy  was  only  wanting,  and  that  the  statute 
of  1852  belonged  to  that  class  of  retrospective  acts  which  the 
Legislature  had  a  perfect  right  to  pass.* 

So  in  Pennsylvania,  f  a  judgment  entered  on  the  first 
instead  of  the  third  day  of  January,  and  void  for  that  reason, 
was  held  to  be  cured  by  an  act  of  February,  1822.  So  again,  % 
it  was  there  decided  that  an  omission  in  the  certificate  of 
acknowledgment  of  a  married  woman  to  a  deed  conveying  her 
estate  in  lands,  was  remedied  by  an  act  passed  for  that  purpose 
after  the  death  of  the  wife,  and  after  the  lands  had  descended, 
and  after  the  court  had  decided  that  the  acknowledgment  was 
inoperative  to  pass  the  lands.  In  the  face  of  all  these  facts, 
the  Supreme  Court  of  Pennsylvania  held,  that  the  act  in  ques- 
tion, being  remedial  in  its  nature,  cured  the  defective  ac- 
knowledgment, so  that  the  lands  passed,  and  the  grantees  took 
the  title  under  it;  although  without  the  act  no  title  would 
have  passed  by  the  deed  to  the  grantee.  |  The  Supreme 
Court  of  that  State  laid  down  the  doctrine,  that  it  is  competent 
for  the  Legislature  to  pass  acts  retrospective  in  their  characterr 
notwithstanding  their  operation  may  be  to  affect  pending  suits, 
and  to  give  to  a  party  rights  he  did  not  before  possess ;  or  to 
modify  an  existing  remedy ;  or  to  remove  an  existing  impedi- 
ment in  the  way  of  a  recovery  by  legal  proceedings,  provided 
they  do  not  violate  any  constitutional  prohibitions.  In  Ohio, 
retrospective  laws  which  violated  no  principle  of  natural 
justice,  were  not  forbidden  by  the  Constitution  of  that  State  of 
1802.1 

The  result  of  this  branch  of  our  inquiry  is,  then,  that  the 
Legislature  is  competent  to  give  a  statute  a  retroactive  or 

*  Syracuse  City  Bank  v.  Davis,  16  Barb.  ±  Tate  v.  Stooltzfoos,  16  Serg.  &  Rawle,  35. 

S.  C.  E,  188.  I  Hepburn  v.  Curts,  Y  Watts,  300. 

f  Underwood  v.  Lilly,  10  Serg.  &  Rawle,  «[  Trustees  of  C.  F.  R.  E.  A.  v.  M'Caughy 

97,  101.  et  al.,  22  Ohio,  152;  2  Ohio  State  Rep.  152. 


RETROSPECTIVE   STATUTES.  173 

retrospective  effect,  unless,  first,  the  act  violate  the  provision  of 
the  federal  Constitution  in  regard  to  ex  post  facto  laws  and  the 
obligation  of  contracts — or,  second,  unless  it  so  interfere  with 
vested  rights  of  property  as  not  to  come  within  the  proper 
limits  of  the  law-making  power — or,  third,  unless  it  comes 
within  the  purview  of  some  express  prohibition  contained  in  a 
State  Constitution ;  that,  independently  of  these  exceptions, 
retrospective  statutes  are  within  the  scope  of  the  legislative 
authority ;  and  that  the  courts  are  bound  to  enforce  them ; 
but  that  such  laws,  as  a  general  rule,  are  objectionable  in 
principle  and  unjust  in  practice ;  and  that  the  judiciary  will  give 
all  laws  a  prospective  operation  only,  unless  their  language  is  so 
clear  as  not  be  susceptible  of  any  other  construction.  In  clos- 
ing this  branch  of  our  subject,  we  cannot  fail  to  remark  that, 
in  practice,  the  true  principle  of  legislation  is  frequently  lost 
sight  of  in  regard  to  the  enactment  of  statutes  having  a  retro- 
active effect.  Laws  are  constantly  passed,  either  in  the  shape 
of  repealing  or  innovating  acts,  which  disturb  plans  or  destroy 
rights  entered  into  upon  the  faith  of,  or  created  by,  previous 
legislation.  Nothing  short  of  some  great,  paramount  emer- 
gency of  public  policy,  can  justify  laws  of  this  kind ;  and  it 
will  be  well  for  all  engaged  in  the  business  of  government,  to 
understand  and  remember  that  the  steady  and  uniform  rule 
should  be  to  make  statutes  operate  prospectively  only.  No  ex- 
ception should  be  tolerated,  but  on  the  ground  of  a  controlling 
public  necessity. 

Having  thus  attempted  to  define  the  nature  of  the  law- 
making  power,  to  declare  the  true  characteristics  of  a  law,  to 
show  when  it  must  be  a  rule  of  universal  application,  and  how 
far  prospective  only, — we  now  proceed  to  consider  the  nature 
of  the  judicial  power,  and  to  examine  those  checks  upon  the 
legislative  authority,  which,  as  has  been  said,  are  placed  in  the 
hands  of  the  judiciary.  Of  these,  the  first  is  the  right  of  con- 
struction assumed  in  regard  to  all  statutes  of  which  the  lan- 
guage is  ambiguous. 

The  right  and  duty  of  the  judiciary  to  expound  and  to  in- 
terpret doubtful  provisions  of  legislative  enactments,  is  now  one 
of  the  axioms  of  our  law.  But  we  are  not  to  suppose  that  this 


174  JUDICIAL  CONSTRUCTION. 

has  always  been  familiar  doctrine.  On  the  contrary,  like  all 
the  other  guaranties  of  liberty,  it  is  the  result  of  long  ages  of 
struggle  and  conflict,  of  disorder  and  confusion.  The  maxim  of 
the  Koman  law,  Ejus  est  interpretari  legem  cujus  est  condere, 
gave  to  the  imperial  despot  the  same  control  over  the  construc- 
tion that  he  had  over  the  enactment  of  laws ;  and  the  arbitrary 
manner  in  which  that  power  was  exercised,  is  well  known. 
"  The  rescripts  of  the  emperor,  his  grants  and  decrees,  his  edicts 
and  pragmatic  sanctions,  were  subscribed  in  purple  ink,  and 
transmitted  to  the  provinces  as  general  or  special  laws,  which 
the  magistrates  were  bound  to  execute,  and  the  people  to 
obey."'  Of  these,  the  rescripts  were  replies  to  consultations 
of  the  judges,  and  operated  in  fact  like  decrees  on  appeal  in 
litigated  cases. 

When  the  lights  of  English  jurisprudence  first  dawned,  we 
have  seen  that  the  imperial  power  of  construing  and  applying 
its  own  laws,  was  claimed  by  Parliament ;  and  that  litigated 
cases  upon  which  the  judges  doubted,  were  referred  to  it  for 
decision,  f  But  the  exercise  of  judicial  functions  by  a  popular 
representative  body  in  modern  times,  is  practically  out  of  the 
question,  nor  could  it  long  be  submitted  to  by  men  so  intelli- 
gent, and  so  attached  to  the  rights  and  privileges  of  their  order, 
as  the  judges  of  England  have  in  all  ages  shown  themselves. 
Parliament  abandoned  its  control  over  litigated  cases,  and  the 
power  of  construction  fell  to  the  judiciary.  We  have  no  means 
of  tracing  the  manner  in  which  the  transfer  of  authority  was 
effected ;  but  at  a  very  early  day  we  find  it  asserted  in  even 
more  than  its  present  plenitude.  "  If  you  ask  me,  then,"  says 
old  Hobart,  "  by  what  rule  the  judges  guided  themselves  in 
this  diverse  exposition  of  the  self-same  word  and  sentence,  I 
answer,  it  was  by  that  liberty  and  authority  that  judges  have 
over  laws,  especially  over  statute  laws,  according  to  reason  and 
best  convenience  to  mold  them  to  the  truest  and  best  use."  % 
And  Bacon,  in  his  Abridgement,  adopting  this  language,  saj»s, 
"  The  power  of  construing  a  statute,  is  in  the  judges,  who  have 
authority  over  all  laws,  and  more  especially  over  statutes,  to 

*  Gibbon,  cb.  xliv.  \  Sheffeild  v.  Ratcliffe,  Hobart,  346. 

f  See  ante,  page  18. 


JUDICIAL  CONSTRUCTION.  175 

mold  them  according  to  reason  and  convenience  to  the  best  and 
truest  use." 

Nor  did  the  judiciary  use  their  new  powers  sparingly.  Tak- 
ing advantage  of  the  paucity  and  ambiguity  of  the  statutes,  of 
the  inattention  of  the  Legislature  to  the  business  of  jurispru- 
dence and  juridical  science,  and  making  as  their  excuse,  the  ex- 
istence of  daily  and  admitted  abuses,  they  soon  came  to  exer- 
cise powers  little  short  of  those  of  the  Parliament  itself.  "  In  a 
great  variety  of  cases,"  says  Mr.  Dwarris,  *  "  the  invasion,  by 
the  judges,  of  the  province  of  the  Legislature  has  been  quite  un- 
justifiable. When  rules  of  law  have  been  found  to  work  in- 
justice, they  have  been  evaded  instead  of  being  repealed.  Ob- 
solete or  unsuitable  laws,  instead  of  being  removed  from  the 
statute  book,  have  been  made  to  bend  to  modern  usages  and 
feelings.  Instead  of  the  Legislature  framing  new  provisions  as 
occasion  has  required,  it  has  been  left  to  able  judges  to  invade 
its  province  and  to  arrogate  to  themselves  the  lofty  privilege  of 
correcting  abuses  and  introducing  improvements.  *  *  Upon 
a  careful  investigation  of  the  course  actually  pursued,  it  will  be 
found  that  in  general,  inconvenient  laws  were  set  aside,  and  re- 
quired changes  were  effected,  by  the  use  of  technical  fictions 
and  contrivances  to  evade  -inconsistent  rules ;  and  if  there  has 
been  a  lamentable  want  of  politic  institutions,  there  has  been 
thought  to  have  been  also  at  times,  some  defect  of  judicial  prin- 
ciples." And  he  adds,  "  It  certainly  is  a  remarkable  fact  that 
the  jurisdiction  or  method  of  proceeding  in  all  our  superior 
courts,  will  be  discovered  on  inquiry  to  be  founded  on  usurpa- 
tion, and  sustained  by  fiction."  This  is  a  very  severe  judgment 
upon  the  order  and  philosophy  of  the  English  system,  and  there 
can  be  no  doubt  that  there  is  great  foundation  for  it.f 

It  would  be  easy  to  cite  from  the  reports,  instances  of  inter- 
pretation which  amount  to  nothing  short  of  legislation,  where, 
in  cases  "entirely  free  from  doubt,  the  judges  have  made  rules  as 
the  emergency  seemed  to  them  to  require.  Nor  was  their 
power  exercised  without  strenuous  resistance.  The  judiciary  a 
century  and  a  half -ago,  under  the  English  system,  was  a  very 

*  Dwarris  on  Stat.  p.  708,  792.  erty  Commissioners,  for  an  energetic  condem- 

f  See  First  Report  of  English  Real  Prop-    nation  of  legal  fictions. 


176 


JUDICIAL  CONSTRUCTION. 


different  institution  from  that  which  we  have  since  learned  to 
regard  it.  Now  with  the  magistracy,  we  inseparably  connect 
the  ideas  of  integrity,  learning,  and  philosophy.  The  great 
names  of  Eldon,  Mansfield,  Marshall,  Kent,  and  Story,  arise  at 
once  before  us  when  we  speak  of  tribunals  of  justice.  But  far 
different  was  it  at  the  era  of  the  English  Revolution.  In  the 
minds  of  the  thinking  men  of  that  period,  the  judges  were  the 
arbitrary  and  servile  tools  of  the  crown.  With  them  the  judi- 
ciary was  represented  by  the  corruption  of  Bacon,  the  servility 
of  Herbert,  and  the  cruelty  of  Jeffries;  the  atrocities  of  the 
bloody  assizes,  the  lawless  despotism  of  the  ship-money  judg- 
ment, and  the  scandalous  illegality  of  the  dispensing  power. 
It  is  not  to  be  wondered  at  that  the  judicial  doctrine  of  con- 
struction was  distrusted  by  the  opponents  of  the  abuses  of 
monarchical  authority.* 


*  Clarendon,  no  lukewarm  friend  of  the 
crown  says,  speaking  of  the  ship-money  case, 
"  And  here  the  damage  and  mischief  cannot 
be  expressed  that  the  crown  and  State  sus- 
tained by  the  deserved  reproach  and  infamy 
that  attended  the  judges  by  being  made  use 
of  in  this  and  like  acts  of  power ;  there  being 
no  possibility  to  preserve  the  dignity,  rever- 
ence, and  estimation  of  the  laws  themselves 
but  by  the  integrity  and  innocency  of  the 
judges ;"  and  he  proceeds  to  charge  the  vio- 
lence of  the  ensuing  Parliament  "  to  the  irrev- 
erence and  scorn  the  judges  were  justly  in." — 
Hist,  of  Rebellion,  Oxford  ed.  1704,  vol.  i,  p.  55. 

"  Away,  then,"  says  a  staunch  whig  writer, 
about  the  year  1700,  "  with  that  apparently 
sophistical  argument  which  in  late  times 
made  so  great  a  noise  and  bustle  in  the  world, 
namely,  that  the  King,  the  Lords'  House,  and 
the  Commons'  House  concurring,  had  not  an 
unlimited  power  to  make  laws,  it  being  in  the 
breast  of  the  judges  of  the  realm  to  determine 
which  acts  of  Parliament  were  binding  and 
which  void,  and  to  expound  the  meaning  of 
every  act  of  Parliament.  And  that,  by  refer- 
ring this  unto  the  judges  of  the  realm,  the 
people  were  better  secured  from  an  arbitrary 
power  than  by  attributing  it  to  the  Parlia- 
ment. A  notion  which  hath  been  artifically 
spread  abroad,  and  industriously  improved ;  a 
notion  which  is  equally  pernicious  and  inju- 
rious to  all  kings  and  parliaments,  whose  in- 
herent right  it  ever  was,  by  joint  consent  to 
alter,  amend,  explain,  and  interpret  their  own 
statutes  as  they  saw  cause,  and  according  to 
public  convenience.  But  how  could  any  thing 
of  all  that  be  done,  if  the  judges  had  ever 
been  invested  with  such  a  power  inseparably 
united  and  annexed  to  their  persons,  quatenus 


judges,  to  invalidate,  disannul,  and  declare 
but  one  act  of  Parliament  to  be  void  ;  since, 
by  the  same  authority,  they  might  have  de- 
clared another  to  be  so  too,  and  by  like  logic, 
all,  wathout  ever  adjourning  any  case  ad 
proximum  Parliamentum  propter  diffindtatem. 
And  thus  we  see  uno  absurdo  dato,  infinita  se- 
quuntur." — "Jus  Parliament 'arium,  or  the  An- 
cient Power,  Jurisdiction,  Rights,  and  Liber- 
ties of  the  Most  High  Court  of  Parliament, 
Revised  and  Asserted  by  William  Petyt." 
This  work  was  published  after  the  author's 
death,  in  1739.  Petyt  was  a  barrister  of  the 
Inner  Temple,  and  Keeper  of  the  Records  in 
the  Tower.  He  appears  to  have  died  shortly 
after  the  accession  of  William  III.  The  whole 
of  Chapter  V  of  this  work,  from  which  the 
above  is  taken,  is  an  elaborate  argument 
against  judicial  construction.  The  heading 
runs  thus,  "  Where  former  statutes  have 
seemed  dark  and  dubious,  and  by  the  subtle 
and  nice  wits  of  learned  lawyers,  were  made 
liable  to  several  different  constructions,  the 
Parliament,  as  being  the  highest  court  and 
seat  of  justice,  and  who  best  knew  their  own 
sense  and  meaning,  wisely  provided  additional 
explanatory  acts  to  direct  and  guide  the 
judges  of  Westminster  Hall,  how  they  ought 
to  expound  such  statutes,  and  did  not  leave 
them  to  follow  their  own  arbitrary  discretions 
of  interpreting  those  laws  contrary  to  the 
true  design  and  intent  of  the  makers  thereof." 
His  seventh  chapter,  entitled,  "  Of  the  Orig- 
inal of  Non  Obstantes,  and  how  they  came 
into  the  Courts  of  Justice,"  is  an  elaborate  ex- 
amination and  vehement  denial  of  the  dispens- 
ing power. 

The   subject  of  Non    Obstantes,  as    they 
were  at  the  time  of  the  Engrlish  Revolution 


JUDICIAL   CONSTRUCTION. 


177 


So  far  as  the  character  of  the  judiciary  was  concerned,  the 
evils  attributed  to  the  doctrine  of  judicial  constructions  were 


familiarly  called,  or  that  of  the  right  then 
claimed  for  the  king;,  by  virtue  of  his  royal 
prerogative,  to  dispense  with  the  provisions 
of  a  statute  in  favor  of  some  particular  per- 
son, is  so  interesting  that  I  compress  into 
this  note  a  brief  abstract  of  the  case  of 
Godden  v.  Hales,  from  Howell's  State  Trials, 
ed.  of  1811,  vol..  xi,  p.  1165.  The  stat.  25 
Charles  II,  "for  preventing  dangers  which 
may  happen  from  Popish  Recusants,  and 
quieting  the  minds  of  his  Majesty's  good 
subjects,"  passed  during  the  religious  ex- 
citement which  prevailed  in  that  monarch's 
reign,  declared  that  every  person  appointed 
to  office,  civil  or  military,  under  the  king, 
should  within  three  months  after  acceptance, 
receive  the  sacrament  according  to  the  visages 
of  the  Church  of  England,  and  publicly  take 
the  oaths  of  supremacy  and  allegiance,  under 
a  penalty  of  £500,  for  executing  the  duties  of 
the  office  after  the  three  months  expired 
without  the  oaths  and  sacrament  being  taken. 
In  the  year  1686  (2d  Jas.  II),  Godden,  or 
Godwin,  an  informer,  sued  Sir  Edward  Hales 
in  the  King's  Bench,  in  an  action  of  debt  of 
£500,  alleging  that  the  defendant,  in  1673, 
was  admitted  to  the  office  of  colonel  of  a 
foot  regiment,  and  held  it  for  three  months 
without  taking  the  sacrament  or  oaths  in 
question,  and  that  he  had  been  indicted  for 
and  convicted  of  the  offence.  The  defendant 
pleaded  that  within  the  three  months  in  the 
declaration  mentioned,  the  king,  by  letters 
patent,  did  dispense  with,  pardon,  remit,  and 
discharge  the  defendant  from  taking  the  said 
oaths,  <fec.,  and  from  all  crimes,  &c.,  any 
clause  in  the  said  act,  or  in  any  other  act 
notwithstanding,  and  non  obstante  that  the 
defendant  was  or  should  be  a  recusant  con- 
vict ; — demurrer  and  joinder.  On  this  case 
the  twelve  judges  were  consulted :  eleven 
declared  in  favor  of  the  demurrer ;  and 
judgment  was  given,  quod  querens,  nilcnpiat 
per  billam.  The  eleven  judges  have  been 
ever  since  severely  condemned,  and  the 
twelfth  has  not  fared  much  better  (see  Macau- 
lay's  Hist,  of  England,  vol.  ii.cbap.  vi).  The 
dispensing  power  has  been  a  sort  of  standing 
symbol  or  equivalent  for  every  thing  arbitrary 
and  tyrannical ;  and  by  the  Bill  of  Rights, 
1  W.  &  M.  ses.  ii,  c.  ii,  §  12,  it  was  declared 
that  from  the  then  session  of  Parliament,  no 
dispensation  with  any  statute  should  be  valid, 
unless  such  statute  declared  it,  &c.,  and 
except  in  such  cases  as  should  be  specially 
provided  for. 

But,  perhaps  an  accurate  examination  of 
the  subject  will  lead  to  a  somewhat  more 
charitable  judgment,  as  far  at  least  as  the 
judges  are  concerned.  Mr.  Macaulay's  ac- 
count is  not  very  full.  As  reported  in  the 
State  Trials,  the  arguments  of  the  case  by 
12 


the  counsel,  and  the  judgment  of  the  court, 
are  feeble  enough  ;  but  the  treatises  published 
on  both  sides  of  the  question  at  the  time,  by 
Sir  Robert  Atkins,  and  the  Chief  Justice, 
Sir  Edward  Herbert,  enable  us  to  form  a 
pretty  accurate  opinion  of  the  subject.  These 
pamphlets  are  republished  in  Howell's  State 
Trials,  at  the  end  of  the  case. 

That  the  king  had  a  certain  dispensing 
power  in  regard  to  the  penal  legislation  of 
Parliament,  was  generally  admitted.  This 
prerogative  is  defined  and  defended  by  Coke, 
in  the  case  of  the  Monopolies :  Dispensatio 
mali  prohibiti  est  de  jure  Domino  Regi  com- 
missa,  propter  impossibilitatem  providendi  de 
omnibus  particularibus,  et  dispensatio  est  mali 
prohibiti  provida  relaxatio,  utililate  seu  necessi- 
tate. It  was  considered  as  a  sort  of  anticipa- 
tory and  more  extensive  pardoning  power. 
Hobart,  Plowden,  Vaughan,  had  all  treated 
the  existence  of  the  prerogative  to  some  ex- 
tent as  unquestionable,  and  it  had  been  re- 
peatedly recognized  by  the  courts.  On  the 
other  side,  the  right  of  dispensation  in  gen- 
eral was,  it  is  true,  denied ;  but  the  main 
question  raised  in  the  reign  of  James  II,  was, 
admitting  its  existence,  whether  the  right 
covered  the  particular  case.  It  was  agreed 
by  the  crown  lawyers  that  the  dispensation 
must  be  confined  to  the  case  of  an  individual, 
and  could  not  be  general ;  but  that  presented 
no  difficulty  in  this  instance,  the  patent  being 
to  Hales  alone.  It  was  admitted  also,  that 
the  dispensation  could  only  be  of  mala  pro- 
hibita,  and  not  of  mala  per  se ;  and  it  was 
strenuously  discussed  whether  the  prohibited 
act  in  this  case  belonged  to  the  one  or  the 
other  class.  It  was  admitted  that  the  dis- 
pensing power  could  not  apply  to  those  laws 
which  concern  property,  but  it  was  insisted 
that  it  did  cover  those  relating  to  the  policy 
of  government. 

It  is  curious  to  observe,  that  so  far  as  the 
act  of  25  Charles  II  imposed  a  I'eligious  test, 
it  would  now  be  almost  universally  regarded, 
even  in  England,  as  unwise  and  unjust;  and 
that  thus  a  great  principle  of  liberty  was  es- 
tablished by  maintaining  and  defending,  in 
its  full  violence,  a  fanatical  and  arbitrary  stat- 
ute. But  the  law  was  the  will  of  the  nation, 
the  non  obstante  patent  was  the  act  of  the 
king.  And  there  is  the  true  interest  and  the 
real  merit  of  the  question. 

A  century  before,  no  lawyer  would  proba- 
bly have  disputed  the  dispensing  power  in  its 
fullest  extent.  The  Parliament  that  passed 
the  act  of  31  Henry  VIII,  giving  the  king 
power  to  make  laws  by  mere  proclamation, 
would  have  hardly  ventured  to  quarrel  with 
a  non  obstante  ;  but,  in  the  next  century  the 
power  of  the  sovereign  had  dwindled,  the  di- 
mensions of  the  nation  had  expanded,  and 


178 


JUDICIAL   CONSTRUCTION. 


corrected  by  the  act  which  made  the  tenure  of  their  office  de- 
pendent on  their  good  conduct  alone,  and  emancipated  them  from 
all  subordination  to  the  crown.  The  influence  of  this  altera- 
tion was  almost  immediately  perceptible;  the  same  magistrates 
who,  holding  their  offices  de  bene  placito  would  have  been  syco- 
phants and  time  servers,  became  so  soon  as  they  occupied  their 
seats  quamdiu  se  bene  gesserint,  bold  and  honest  public  servants.* 


that  flexible  thing  called  the  English  Consti- 
tution adapted  itself  to  the  new  state  of 
things.  Looking  at  the  question,  however,  as 
it  presented  itself  in  the  reign  of  James  II, 
either  to  the  strict  technical  lawyer  of  that 
age,  or  to  men  with  any  tendency  to  the  prin- 
ciple of  toleration,  the  judgment  affirming  the 
prerogative  does  not  seem  so  great  an  enor- 
mity as  it  is  now  generally  regarded. 

*  By  the  12  and  13  Wiiliam  111(1700),  c.  3, 
§  3,  it  was  provided  that  after  the  said  limita- 
tion (i.  e.,  of  the  crown  to  the  House  of  Han- 
over) "  shall  take  effect  as  aforesaid,  judges' 
commissions  be  made  quamdiu  se  bene  gesserint, 
and  their  salaries  ascertained  and  established, 
but  upon  the  address  of  both  Houses  of  Par- 
liament it  may  be  lawful  to  remove  them." 
And  by  Geo.  Ill,  c.  23,  the  judges  were  con- 
tinued in  office  during  good  behavior,  not- 
withstanding the  demise  of  the  crown. 

Still,  the  traces  of  the  old  distrust  of  the 
judiciary  are  apparent  in  England,  down  to 
a  very  recent  period.  Notwithstanding  the 
alteration  of  their  tenure,  the  judges  were 
still  the  organs  of  a  system  of  vicious  privil- 
ege and  of  a  sanguinary  penal  code ;  and  it  is 
little  more  than  half  a  century  since  Parr 
called  them  "the  furred  homicides"  of  West- 
minster Hall.  It  is  not,  I  think,  much  more 
than  a  generation  since  this  hostility  has  en- 
tirely disappeared,  and  since  the  reputation  of 
the  English  judiciary  for  moderation  and  hu- 
manity has  been  as  generally  admitted  as  it 
has  always  been  for  learning  and  ability. 

It  is  curious  to  observe  that  the  same  abuse 
of  judicial  authority  took  place  in  France 
also;  and  there  the  judges  carried  their 
power  of  construction  to  such  lengths  that  it 
became  necessary  to  arrest  it  by  positive  law. 
The  power  of  the  judiciary  to  construe  the 
statute  law,  and  the  authority  of  judicial  de- 
decisions  or  acts  generally,  has  been  the  sub- 
ject of  great  controversy  in  France  ;  Dupin 
says,  no  point  more  so.  Jurisprudence  des 
Arreta,  p.  19.  Under  the  old  monarchy,  the 
judges  united  certain  legislative  with  their 
judicial  functions ;  they  pronounced  their  de- 
cisions in  litigated  cases,  or  Arrets,  as  they 
were  called,  because  they  arrested  (arretaient) 
all  further  controversies,  and  terminated  the 
cause.  Dupin's  Jur.  des  Arrets,  p.  1.  And 
they  also  made  arrets  d'enregistrement,  and 
arr6ts  de  reglement.  The  former  applied  to 
royal  edicts,  declarations,  letters  patent,  <fcc., 


and  furnished  a  practical  check  on  the  des- 
potic power  of  the  sovereign,  more  or  less 
efficacious,  as  the  case  might  be.  Tel  edit 
enregistre  a  Paris  ne  1'aura  point  ete  ou  a. 
Toulouse  ou  &  Rouen,  et  n'y  fera  point  loi  par 
consequent;  ou  bien  il  n'aura  ete  enregistre 
qu'ayec  des  modifications  qui  restreignent  ses 
dispositions. — Camus,  Etudes  d'un  Avocat 
4.me  Leltre,  p.  82.  The  latter,  arrets  de  regle- 
ment, decided  questions  of  customary  law 
(droit  coutumier),  police,  professional  disci- 
pline, practice  ;  and  had  the  force  of  law  until 
the  sovereign  interfered  by  an  edict  or  royal 
ordinance.  Dupin's  Jur.  des  Arrets,  p.  48. 

In  regard  to  the  arrets  or  decisions  in  liti- 
gated cases,  the  judges  gradually  fell  into  the 
mischievous  practice  of  giving  their  judg- 
ments without  stating  any  reasons  whatever. 
Ju.  des  Arrets,  p.  62.  This,  of  itself,  would 
naturally  tend  greatly  to  diminish,  if  not  en- 
tirely destroy,  the  weight  and  value  of  their 
decisions,  and  it  finally  came  to  be  insisted  by 
jurists  of  high  authority,  that  they  should  not 
be  cited  at  all.  Camus  goes  so  far  as  to  say, 
"  On  ne  devrait  jamais  citer  que  des  arrets  de 
reglement;  en  alleguer  d'autres  simplement 
comme  des  exemples  et  des  prejuges,  c'est  un 
abus  que  les  gens  senses  devraient  bannir, 
parcequ'un  exemple  ne  saurait  etre  concluant 
qu'autant  que  les  circonstances  sont  entire- 
meat  semblables;  ou,  en  supposant  la  possi- 
bilite  de  cette  similitude  parfaite,  il  reste  & 
1'etablir,  ce  qui  est  ordinairement  une  chose 
impossible.  Mais  ce  mauvais  usage  d'invoquer 
les  arrets  subsistera  long  temps." — Camus' 
Etudes  d'un  Avocat,  p.  101. 

The  disfavor  with  which  the  proceedings 
of  the  judges  were  regarded,  was  greatly  in- 
creased by  their  abuse  of  the  power  of  mak- 
ing arrets  de  reglement.  Exercising  what 
was  truly  a  legislative  function,  when  a  law 
of  the  kind  we  have  above  enumerated  came 
before  them,  and  they  found  either  a  doubt, 
or  a  casus  omissus,  or  what  they  considered 
an  error  in  the  law,  they  removed  the  diffi- 
culty or  supplied  the  omission  by  an  arret  de 
reglement,  which  applied  to  all  future  cases, 
and  operated  like  a  statutory  enactment. 
This  practice,  as  can  easily  be  imagined,  led 
to  great  abuses ;  and  an  attempt  was  made  to 
check  it  by  declaring  that  the  business  of  the 
judges  was  simply  to  obey  the  law,  and  a 
general  prohibition  was  made  of  judicial  in- 
tsrpretation.  This  prohibition,  made  origin- 


JUDICIAL  CONSTRUCTION. 


179 


The  character  of  the  bench  being  changed,  the  mischievous 
abuses  of  the  judicial  power  gradually  tended  to  correct  them- 
selves. As  the  statutes  became  more  plain  and  explicit,  as  the 
Legislature  ceased  to  be  the  mere  arena  of  political  contro- 
versy, and  devoted  itself  to  framing  general  rules  for  the  con- 
duct of  affairs,  the  judges  themselves  set  limits  to  the  powers 
they  had  arrogated ;  and  abandoning  all  pretensions  of  a  right 
to  exercise  any  control  over  legislation,  to  correct  its  errors  or 
supply  its  deficiencies,  they  confined  their  power  of  construction 
to  admitted  cases  of  doubt.  Such  is  now  the  settled  doctrine 
both  in  England  and  in  this  country.  "  The  language  of  the 
statute  is  plain  and  unambiguous,  and  when  such  is  the  case, 
the  will  of  the  Legislature  must  be  obeyed."  *  "  It  is  the  office 
of  the  courts  to  administer  the  law  as  the  Legislature  has  de- 
clared it,  not  to  alter  the  law  by  means  of  construction  in  order 
to  remedy  an  evil  or  inconveniences  resulting  from  a  fair  inter- 
pretation of  the  law."  f  "  It  is  scarcely  necessary,  we  trust," 


ally  so  far  back  as  1667,  Avas  renewed  by  the 
Constituent  Assembly  in  1790.     Portalis'  Dis- 
cours Preliminaire,  Code  Civil,  Art.  4.      The 
judges,  to  take  their  revenge  for  this  interfer- 
ence, adopted  a  new  line  of  practice ;    and 
whenever  the  law  appeared  doubtful  or  ob- 
scure, they  refused  to  decide  the  cause,  and 
referred  the  whole  matter  to  the  Legislature. 
Ib.     This,  however,  was  speedily  condemned 
as  an  abuse,  by  the  Court  of  Cassation  ;  acd 
the  Code  Civil  contains  a  provision  which  at 
first  sight  looks  very  odd  to  the  English  ju- 
rist, declaring  that  the  judge  cannot,  without 
rendering  himself  liable  as  guilty  de  deni  de 
justice,  refuse  to  decide   the   cause,  on  the 
ground  of  the  silence,  the  obscurity,  or  the  de- 
fectiveness  of  the  law;  while  at  the  same  time 
it  is  declared  that  the  judge  may  construe  the 
statute  in  the    particular    case,   but  cannot 
make  any  general  regulations.     The  provis- 
ions are  very  curious.     Le  juge  qui  refusera 
de  juger  sous  pretexte  du  silence,  de  1'obscu- 
rite,  ou  de  1'insuffisance  de  la  loi,  pourra  etre 
poursuivi  comme  coupable  de  deni  de  justice. 
§  4.     II  est  defendu  aux  juges  de  prononcer 
par  voie  de  disposition  generale  et  reglemen- 
taire  sur  les  causes  qui  leur  sont  soumises.    §  5. 
The  abuse  first  above  referred  to  was  cor- 
rected by  a  law  passed  by  the  Constitutional 
Assembly  in   1790,  requiring  the'judges  in 
deciding  causes,  in  all  cases  to  state  the  ques- 
tions of  fact  and  law  involved,  and  the  rea- 
sons of  the  judgment  they  pronounced.     Jur. 
des  Arrets,  p.   68.      Since  this  period,  the 
value  of  the  French  decisions  has  generally 
increased ;  but  the  whole  subject  of  the  judi- 


cial power  in  France  is,  or  has  been  till  a 
comparatively  recent  period,  in  great  uncer- 
tainty.     Portalis,  in  his  admirable  Discours 
Preliminaire  to  the  Code  Napoleon  (1802)  de- 
votes several  pages  to  prove  the  propriety  of 
judicial  construction  of  legislative  acts  as  op- 
posed to  a  reference  of  each  litigated  case 
turning  on  a  doubtful  point  of  statute  law  to 
the  Legislature;  and  in  1822,  M.  Dupin  pub- 
lished his  Jurisprudence  des  Arrets,  for  the 
purpose  of  defining  the  precise  amount  of  au- 
thority rightfully  due  to  judicial  decisions. 
In  the  course  of  it,  the  learned  author  repeats 
the  arguments  of  Portalis  as  to  the  propriety 
and  necessity  of  judicial  construction  (Jur. 
des  Arrets,  pp.  10  and  12),  and  gives  minute 
and  copious  rules  for  the  choice  and  mode  of 
citing  the  arrets  of  the  French  courts.     It  is 
curious  and  interesting,  but  to  the  English  or 
American  jurist  appears  a  very  rudimentary 
treatise.    The  eleventh  chapter  of  the  treatise 
of  Mr.  Dwarris  is  devoted  to  the  subject  of 
the  boundaries  of  legislation  and  of  judicial 
interpretation ;    in  it  he  makes  .  copious  ex- 
tracts from  the  Discours  Preliminaire  of  Por- 
talis, and  among  other  things,  remarks,  "  that 
even  among  our  enlightened  neighbors,  and 
at  a  very  recent  period,  the  boundaries  of 
legislation  a*>d  of  judicial  interpretation  were 
so  vaguely  defined  and  so  imperfectly  under- 
stood, that  the  judges  were  constantly  either 
mistaking  the  principles  or  erring  in  $heir 
application  of  them. — Dwarris,  pp.  697,  783. 

*  Ellis  v.  Paige  et  al,  1  Pick.  43. 

f  Per  Paige,  J.,  in  the  Court  of  Appeals 
James  v.  Patten,  2  Selden,  p.  9. 


180  CONSTITUTIONAL  LIMITATIONS. 

says  Mr.  Chief  Justice  Redfield,  in  the  Supreme  Court  of  Ver- 
mont, "at  this  late  day,  to  say,  that  the  judicial  tribunals  of 
the  State  have  no  concern  with  the  policy  of  legislation.  That 
is  a  matter  resting  altogether  within  the  discretion  of  another 
co-ordinate  branch  of  the  Government.  The  judicial  power 
cannot  legitimately  question  the  policy,  or  refuse  to  sanction 
the  provisions,  of  any  law  not  inconsistent  with  the  fundament- 
al law  of  the  State.  And  they  would  never  attempt  to  do 
this  even,  except  upon  obvious  or  satisfactory  grounds."  * 

Thus  have  the  lines  of  dernarkation,  as  they  now  exist, 
been  established  between  these  two  great  branches  of  Govern- 
ment. The  Legislature  gradually  ceases  to  interfere  with 
private  rights,  and  tends  more  to  confine  itself  to  the  establish- 
ment of  uniform,  general  and  prospective  rules.  The  judges 
resign  and  disclaim  the  power  of  correcting  the  errors  or  sup- 
plying the  deficiencies  of  the  Legislature,  and  confine  them- 
selves strictly  to  the  duty  of  construction  and  interpretation  in 
doubtful  cases.  This  power  is  now  fully  conceded  to  them 
both  here  and  in  England.  The  rules  controlling  the  exercise 
of  this  power,  we  shall  shortly  examine ;  but  before  doing  so, 
we  have  to  consider  our  second  head,  i.  e.,  the  limits  of  the  ju- 
dicial power  as  used  to  apply  and  enforce  constitutional  pro- 
visions. 

This  branch  of  judicial  authority  deserves  particular  atten- 
tion. It  is  entirely  the  growth  of  American  jurisprudence ;  it 
confers  vast  powers  on  the  judicial  body ;  and  it  is  one  of  the 
surest  preservatives  of  our  liberties.  In  England  there  exist 
certain  principles  of  what  is  there  termed  constitutional  gov- 
ernment, to  be  found  in,  or  deduced  from  Magna  Cartel  of 
King  John,  the  statute  called  Confirmatio  Gliartarum,  and 
various  other  corroborating  statutes  passed  between  the  reign 
of  Edward  I.  and  Henry  IV ;  the  petition  of  right  in  the  time 

*  In  re  Powers,  25  Vermont,  p.  265.  "  If  cherished  as  a  vital  principle  of  freedom, 
the  provision  that  the  legislative  and  judicial  And  without  having  recourse  to  the  authority 
powers  shall  be  preserved  separate  and  dis-  of  elementary  writers,  or  to  the  popular  con- 
tinct,  be  not  found  in  our  own  Constitution  in  ventions  of  Europe,  we  have  a  most  coin- 
terms,  it  exists  there  in  substance,  in  the  or-  manding  authority  in  the  sense  of  the  Ameri- 
ganization  and  distribution  of  the  powers  of  can  people,  that  the  right  to  interpret  law 
the  departments,  and  in  the  declaration  that  does,  and  ought  to  belong  exclusively  to  the 
the  "  supreme  legislative  power  "  shall  be  courts  of  justice."  Dash  v.  Van  Kleeck,  per 
vested  in  the  Senate  and  Assembly.  No  max-  Kent,  J.,  7  J.  R.  pp.477,  508-9. 
im  has  been  more  universally  received  and 


CONSTITUTIONAL  LIMITATIONS.  181 

of  Charles  I,  tlie  bill  of  rights  framed  at  the  revolution  of  1688, 
and  the  act  of  settlement  adopted  to  fix  the  succession  in  the 
house  of  Brunswick.  From  these  are  derived  not  only  the 
principal  guaranties  of  public  liberty  in  England,  but  they  are 
also  said  to  declare  and  protect  those  rights  of  personal  secu- 
rity, liberty,  and  private  property,  which,  taken  together,  form 
what  is  called  the  English  Constitution.* 

But  these  rights  all  rest  either  on  legal  concession  or  legis- 
lative enactment ;  and,  in  England,  it  has  never  been  alleged 
that  there  exist  any  precise  written  provisions  which  in  any 
way  limit  the  absolute  and  supreme  power  of  Parliament.  It 
is  not  difficult  to  understand  why  this  should  be  so.  The  great 
efforts  of  the  lovers  of  law  and  liberty  in  England  have  been 
to  set  bounds  to  the  royal  prerogative,  and  to  put  limits  to  the 
authority  of  the  crown.  The  power  opposed  to  the  crown  has 
been  the  Parliament.  It  has  consequently  been  the  interest 
and  duty  of  all  opposed  to  the  arbitrary  powers  of  the  sove- 
reign to  seek  to  amplify  the  authority  of  the  Legislature.  If 
ever  Parliament  shall  become  the  only  powerful  body  in  the 
State,  there  will  be  felt  the  want  and  there  will  arise  the  neces- 
sity in  England,  as  with  us,  of  express  written  constitutional 
restrictions. 

The  necessity  of  checks  upon  power  was  perfectly  under- 
stood by  the  sagacious  men  who  formed  the  Government  of  this 

*  See  Blackstone's  first  chapter,  on  the  fair  implication,  from  Magna  Carta,  and  its 

rights  of  individuals.  above-mentioned  supplement. 

Mr.  Creasy,  in  his  valuable  work  on  the          "Their  vigorous  development  was  aided 

English     Constitution,     says :    "  The    great  and  attested  in  many  subsequent  statutes,  es- 

primeval  and  enduring  principles  of  our  Con-  pecially  in  the  Petition  of  Right  and  the  Bill 

stitution  are  as  follows :  of  Rights ;  in  each  of  which  the  English  na- 

"  The  government  of  the  country  by  an  tion,  at  a  solemn  crisis,  solemnly  declared  its 

hereditary  sovereign,    ruling    with    limited  rights,  and  solemnly  acknowledged  its  obli- 

powers,  and  bound  to  summon  and  consult  a  gations — two  enactments   which   deserve  to 

Parliament  of  the  whole  realm,  comprising  be  cited,  not  as  ordinary  laws,  but  as  consti- 

hereditary  peers  and  elective  representatives  tutional  compacts,  and  to  be  classed  as  such 

of  the  commons.  with  the  Great  Charter,  of  which  they  are 

"  That  without  the  sanction  of  Parliament  the  confirmers  and  exponents, 
no  tax  of  any  kind  can  be  imposed,  and  no          "  Lord  Chatham  called  these  three  '  The 

law  can  be  made,  repealed,  or  altered.  Bible  of  the  English  Constitution,'  to  which 

"  That  no  man    be   arbitrarily  fined  or  appeal  is  to  be  made  on  every  grave  political 

imprisoned,  that  no  man's  property  or  liber-  question.      The  great  statesman's  advice  is 

ties  be  impaired,  and  that  no  man  be  in  any  still  sound.     It  deserves  to  be  considered  by 

way  punished,  except  after  a  lawful  trial.  subjects  as  well  as  by  princes, — by  popular 

"  Trial  by  jury.  leaders  without  the  walls  of  Parliament,  as 

"  That  justice  shall  not  be  sold  or  delayed,  well  as  by  ministers  within  them." — Rise  and 

"  These  great  constitutional  principles  can  Progress  of  the  English  Constitution,  by  E.  S. 

all  be  proved,  either  by  express  terms  or  by  Creasy  (1856,  p.  3). 


182  CONSTITUTIONAL  LIMITATIONS. 

country ;  and  foreseeing  that — in  the  absence  of  a  church  estab- 
lishment, hereditary  classes  and  standing  armies — popular  ma- 
jorities and  the  popular  bodies  representing  those  majorities, 
would,  in  this  country,  unless  checked,  obtain  an  absolute  and 
despotic  control  over  the  whole  business  of  government,  they 
from  the  outset  imposed  upon  our  legislative  bodies,  in  the 
shape  of  Constitutions,  certain  restraints  which  were  devised 
and  intended  to  protect  individuals  and  minorities  from  the 
arbitrary  exercise  of  the  power  of  majorities.  Hence  it  is  that 
in  this  country  the  subject  of  constitutional  law  has  assumed 
such  importance.  The  federal  Constitution  and  those  of  the 
different  States,  all  declare  certain  principles  and  establish  cer- 
tain restrictions  for  the  very  purpose  of  limiting  legislative 
power.  No  State  shall  pass  any  law  impairing  the  obligation 
of  contracts.  Private  property  shall  not  be  taken  for  public  use 
without  just  compensation.  These  are  specimens  of  the  peremp- 
tory language  by  which  the  people  have  sought  to  keep  their 
agents  in  constant  control. 

o 

The  power  of  applying  these  checks  is  in  the  hands  of  the 
judiciary ;  and  there  is  nothing  more  curious  in  our  history 
than  the  fact,  that  without  any  provision  either  of  Constitution 
or  of  law  giving  this  power  to  the  courts  of  justice,  they  have, 
since  the  earliest  days  of  our  republic,  steadily  and  vigorously 
applied  it.*  They  decide,  in  any  and  every  case,  what  the  true 
construction  of  a  doubtful  constitutional  provision  is,  and 
whether  any  legislative  act  brought  before  them  does  or  does 
not  violate  it ;  and  their  decision  that  a  given  law  is  "  uncon- 
stitutional," at  once  destroys  its  vitality,  and  puts  an  end  to  all 
proceedings  under  it.  The  importance  of  this  feature  of  our 
system,  and  its  bearing  on  the  character  of  the  judiciary,  is  at 
once  apparent.  It  limits  the  power  of  the  Legislature,  it  erects 
the  judiciary  in  some  sense,  into  a  co-ordinate  political  author- 
ity, it  practically  associates  them  with  the  law-making  branch, 
and  has  had  a  very  marked  effect  on  the  character  of  the  legal 
mind  and  education  of  the  country.  It  has  compelled  our  law- 

*  The  doctrine  may  be  considered  as  hav-     vol.  i,  p.  448,  for  a  review  of  the  cases  on-  the 
ing  been  finally  settled  in  Marbury  v.  Madi-     subject, 
son,  1  Cranch,   137.      See  also,  Kent,  Com. 


LEGISLATIVE  AND   JUDICIAL  POWER.  183 

yers  constantly  to  examine,  and  our  judges  to  keep  in  view  the 
great  principles  of  government,  and  has  given  breadth  and 
depth  to  our  discussion  of  all  legal  questions. 

We  proceed  now,  in  our  subsequent  chapters,  to  consider 
the  rules  that  have  been  laid  down  in  regard  to  the  construc- 
tion of  statutes ;  and  shall  afterwards  examine  the  manner  in 
which  the  judicial  duty  of  protecting  the  Constitution  is  exer- 
cised. Throughout  the  investigation  on  which  we  are  thus 
about  to  enter,  it  will  be  necessary  to  keep  in  view  the  line  of 
demarkation  that  we  have  endeavored  to  trace,  between  the 
Legislature  and  the  judiciary.  All  history  teaches  that  it  is  too 
readily  lost  sight  of.  There  is  an  inherent  and  eternal  difficulty 
in  confining  power  of  any  kind  within  its  proper  limits.  This 
general  rule  holds  eminently  true  in  regard  to  legislative '  and 
judicial  bodies.  The  Legislature  tends  to  disregard  private 
rights,  and  to  overstep  the  limits  of  the  Constitution ;  the  judi- 
ciary to  annul  or  evade  laws  which  appear  to  it  needlessly  or 
improperly  made,  and  which,  when  applied  to  the  affairs  of 
life,  seem  calculated  to  work  injustice.  Either  practice  is  an 
evil  strictly  to  be  guarded  against.  If  the  Legislature  should 
be  kept  strictly  within  the  bounds  of  its  constitutional  provis- 
ions, so  on  the  other  hand  the  judiciary  should  not  be  permitted 
to  overstep  the  limits  within  which  the  fundamental  principles 
of  our  system  have  confined  it. 

We  have  seen,  in  the  course  of  the  preceding  discussion, 
how  in  the  earlier  ages  of  English  history  the  judges  have 
abused  their  power.  This  has  been  owing  partly,  no  doubt, 
to  political  causes  which  have  prevented  the  Legislature  from 
giving  that  attention  to  the  details  of  the  law  which  the  gen- 
eral interests  of  jurisprudence  demanded ;  partly  to  the  nar- 
rowness and  severity  of  many  of  the  maxims  of  the  com- 
mon law ;  partly  to  the  brevity  with  which  the  early  stat- 
utes were  framed,  and  the  apparent  necessity  of  applying  to 
them  very  liberal  doctrines  of  interpretation;  partly  to  the 
rapid  and  perpetual  changes  to  which  society  was  subjected 
by  war,  revolutions,  and  religious  controversies ;  partly  to 
the  dependence  of  the  judiciary  on  the  sovereign ;  but  much 
has  been  due  to  the  want  of  keeping  before  the  judicial 


184  JUDICIAL    POWER. 

mind  the  true  boundary  between  legislation  and  interpreta- 
tion.* 

It  is  to  be  borne  in  mind  that  these  excuses  no  longer  exist ; 
the  legislator  has  now  time  to  frame  his  statute  in  simple  and 
intelligible  language;  the  demands  of  commerce  have  made 
peace  the  normal  state  of  the  world,  and  religious  toleration  is 
recognized  as  the  true  interest  of  every  natioo,  whatever  may 
be  its  creed ;  the  great  interests  of  society  and  the  duties  of 
Government,  are  better  understood ;  the  fundamental  doctrine 
of  equality  before  the  law  is  recognized  in  all  civilized  coun- 
tries ;  and  it  is  time  that  the  true  line  of  deniarkation  between 
the  Legislature  and  the  judiciary  should  be  strongly  marked 
and  strictly  maintained.  Unless  this  be  done,  jurisprudence 
will  always  fall  short  of  the  scientific  character  to  which  it 
aspires.f 

The  undisputed  powers  of  the  judiciary  are  very  great; 
they  not  only  expound  statutes  and  mold  and  modify  their 
own  judgments,  but  they  declare  what  is  meant  by  the  comity 
of  nations,  and  apply  the  laws  of  foreign  countries.  The  daily 
habits  of  business  are  under  their  control ;  new  customs,  every 
day  arising,  stand  or  fall  by  their  decisions ;  and  under  cover 
of  the  right  to  enforce  public  policy  and  to  protect  good  morals, 
they  exercise  a  large  and  undefined  authority  over  private  con- 
duct. To  all  this  is  added  in  America,  the  undisputed  right  to 
declare  constitutional  law,  and  thus,  in  certain  cases,  to  over- 
ride the  express  will  of  the  Legislature  itself.  These  functions 
are  ample  enough  to  gratify  the  most  eager  love  of  power,  to 
demand  the  exercise  of  the  noblest  intellect  and  the  application 
of  the  most  vigorous  industry.  Let  the  magistrate  be  con- 
tented with  this  large  authority;  and  let  him  not,  by  endeavor- 
ing to  extend  it,  endanger  the  power  that  he  now  securely  pos- 
sesses. The  judicial  department  should  be  the  most  vigilant 
by  its  example  to  resist  "that  spirit  of  encroachment  which 

*  Dwarris,  p.  708.  secundum  legem  judices  ?    Plus  sibi  sapere  visi, 

f  St.  Augustine  says  (De   Vera  Religione,  insultant  legibus  et  *ibi  conscientias  architectan- 

p.  31),  Non  licet  judicibus  de  leyibus  judicare,  tur  contra  publicas  leges.      Aut  igltur  sedere 

ted  secundum  ipsas.  desinant,  ant  sccundum  leges  judicent.     Argen- 

Argentre,  an  eminent  French  legist,  in  his  traeus  in  Antiq.  Consuet.  Bret.  §  323,  glos.  1, 

work  on  the  customary  law  of  Britanny,  says,  n.  5  ;  Nov.  Consuet.  art.  627,  cited  in  Dupin's 

"  Stulta  videtur  sapientia  quce  lege  vult  sapien-  Jurisprudence  des  Arrets,  p.  125. 
tior  videri.     Cur  de  lege  judicas,  qui  sedes  ut 


JUDICIAL    POWER.  185 

tends  to  consolidate  the  powers  of  all  the  departments  in  one, 
and  thus  create,  whatever  the  form  of  government,  a  real  des- 
potism."* 

Before  leaving  this  branch  of  my  subject,  I  may  take  notice 
of  a  subject  indirectly  connected  with  it.  It  has  sometimes 
been  the  practice  for  the  judges  to  decry  certain  statutes  as 
being  contrary  to  good  morals,  such  as  the  usury  laws  and  the 
statute  of  limitations ;  and,  going  even  further  than  this,  they 
have  in  many  cases  manifested  their  disapprobation  of  these 
laws  by  the  mode  in  which  they  have  exercised  their  dis- 
cretionary powers  in  regard  to  them.  So,  they  have  refused  to 
let  these  statutes  be  set  up  by  way  of  defence  when  it  was 
necessary  for  that  purpose  to  apply  to  the  favor  of  the  court,  f 
So  again,  it  has  been  customary  for  judges  strongly  to  condemn 
the  permission  which  our  law  gives  to  insolvent  debtors  to 
make  assignments  with  preference.  So  in  a  late  case,  speaking 
of  the  recent  change  in  our  legislation  as  to  the  rights  of 
married  women,  J  one  of  the  justices  of  the  Supreme  Court  of 
New  York  declares  it  to  be  "  an  extraordinary  law,  a  law 
which  is  well  calculated,  in  its  influences,  to  embitter  the  chief 
springs  of  social  enjoyments  ;  to  degrade  the  sacred  relation  of 
man  and  wife,  leaving  in  full  vigor  only  the  secular  and  sordid 
companionship  of  baron  and  feme."  But  it  may  well  be  con- 
sidered doubtful  if  it  is  competent  for  the  judiciary  to  make 
any  such  distinctions.  It  is  the  duty  of  the  bench  to  expound 
and  construe  the  law  of  the  country,  such  as  that  law  is  made 
by  the  Legislature.  They  are  not  at  liberty  to  nullify  it  when 
once  clearly  declared.  As  little  can  they  be  considered  afc 
liberty  to  discriminate  between  one  class  of  statutes  and 
another,  and  to  censure  a  defendant  for  acting  according  to 
that  standard  of  morality  which  the  law-making  power  has 
has  made  the  rule  of  conduct  for  both  judges  and  litigants. 

These  ideas  have  already  been  expressed  by  some  of  our 
most  sagacious  magistrates.  In  New  York,  Mr.  Justice  Harris 
has  recently  said,  "  Courts  in  the  exercise  of  their  discretion 

*  Washington's  Farewell  Address.  ±  American  Home  Missionary  Society  v. 

f  Fulton   Bank  v.  Beach,  1  Paige,  429  ;     Wadhams,  10  Barb.  568. 
TJtica  Insurance  Co.  v.  Scott,  6  Cowen,  606 ; 
Jackson  v.  Varick,  2  Wend.  294. 


186  JUDICIAL    POWER. 

in  allowing  amendments,  have  thought  it  proper  to  discriminate 
between  what  have  been  regarded  as  hard  and  unconscionable 
defences,  and  such  as  have  been  considered  with  more  favor.* 
The  soundness  of  this  discrimination  may  well  be  doubted. 
The  Legislature  of  this  State  have  thought  it  wise  to  declare 
usury  to  be  a  legal  defence  to  an  action  upon  the  usurious 
contract.  In  doing  so  they  have  but  followed  every  other 
civilized  State.  With  the  policy  of  such  laws,  courts  have 
nothing  to  do.  When  a  plaintiff  wilfully  violates  the  law  by 
taking  a  greater  amount  of  interest  than  it  allows,  I  do  not  see 
upon  what  principle  a  court  should  take  it  upon  itself  to 
pronounce  the  defence  with  which  the  law  has  provided  the 
defendant,  hard  or  unconscionable.  But  such  has  been  the 
practice,  and  perhaps  that  practice  has  now  become  so 
inveterate  that  it  cannot  be  disregarded."  f 

So  again,  in  the  Court  of  Appeals,  when  an  application 
was  made  at  the  trial  under  the  New  York  Code  of  Procedure, 
to  amend  a  defective  allegation  of  usury  in  an  answer,  the 
Superior  Court  denied  it ;  but  the  Court  of  Appeals  held  this 
denial  wrrong,  and  said,  "  We  are  not,  I  conceive,  warranted  in 
applying  a  different  rule  to  the  defence  of  usury,  from  that 
which  we  should  hold  applicable  in  other  cases.  It  is  a 
defence  allowed  and  provided  by  law.  The  defendant  did  not 
claim  an  indulgence  from  the  court,  but  simply  asked  for  the 
application  of  those  rules  which  the  Legislature  has  provided 
for  all  cases  indiscriminately,  whether  the  party  invoking  their 
exercise  was  seeking  to  visit  his  adversary  with  a  forfeiture  or 
not.  The  law  has  not  made  any  difference  between  such 
defences  and  those  where  no  forfeiture  is  involved;  and  the 
court  can  make  none.  If  the  sense  of  the  Legislature  is  plainly 
expressed,  we  have  no  judgment  to  pass  upon  the  policy  of 
their  provisions."  £ 

*  Fulton  Bank  v.  Beach,  1  Paige,  429 ;  f  Bates  v.   Voorhies,   7  How.   Pr.  Rep. 

Utica   Insurance   Co.  v.  Scott,  6  Cow.   606;     234. 
Jackson  v.  Varick,  2  Wend.  294.  \  Catlin  v.  Gunter,  1  Kern.  368. 


AUSTIN  ON  JURISPRUDENCE.  187 

We  have  in  this  chapter  discussed  the  subject  of  legislative  power  in  an 
entirely  practical  point  of  view,  considering  the  actual  application  of  laws 
to  the  daily  affairs  of  life;  but  the  subject  is  often  treated  in  a  different  aspect, 
and  I  give  in  this  note  a  very  brief  summary  of  one  of  the  ablest  works  on 
abstract  jurisprudence,  which  this  century  (not  fertile  in  such  treatises)  has 
produced  ;  it  will  serve  to  give  an  idea  of  this  sort  of  investigation.  The 
work  to  which  I  refer  is,  The  Province  of  Jurisprudence  Determined,  by  John 
Austin,  Esq.,  Barrister  at  Law,  London,  1832.  Mr.  Austin's  object  (Pref.  pp. 
5  and  8),  in  •  accordance  with  his  title,  is  to  distinguish  positive  law,  the 
appropriate  matter  of  jurisprudence,  from  various  other  objects  to  which  it  is 
connected  by  resemblance,  and  from  various  other  objects  to  which  it  is  allied 
by  analogy,  all  being  connected  and  often  confounded  by  the  common  name 
of  "  laws."  Mr.  Austin's  leading  propositions  are  these  :  Laws  are  a  species 
of  commands  (p.  21),  but  the  term  is  often  improperly  applied  to  various 
objects  having  really  nothing  of  an  imperative  character  ;  and  the  writer  classes 
laws  as  follows  : 

1st.  Divine  Laios,  or  the  law  of  God,  revealed,  and  unrevealed  or  tacit. 
This  branch  does  not  include  the  natural  laws,  which  come  under,  the  fourth  or 
last  head. 

2d.  Positive  Laivs,  constituting  what  is  commonly  known  as  Jurisprudence  : 
laws  set  by  political  superiors  to  political  inferiors  (p.  199)  ;  set  by  a  monarch 
or  sovereign  number,  to  a  person  or  persons  in  a  state  of  subjection  to  the 
author. 

3d.  Laivs  of  Positive  Morality,  embracing  positive  moral  rules  proper 
(distinguished,  however,  from  the  laws  of  God),  and  also,  the  moral  rules  set 
by  opinion,  as  code  of  honor,  laws  of  fashion ;  these  last  are  laws  by  analogy 
only  ;  they  are  really  opinions,  and  are  improperly  called  laws  (chap,  v,  p. 
130,  note). 

4th.  Laws  Metaphorical  or  Figurative. — Laws  of  physics  or  of  matter. 
These,  the  author  says,  are  not  really  laws  at  all.  They  are  only  called  laws 
by  a  figure  or  metaphor  of  speech  (p.  183). 

The  law  of  God  consists  of  the  revealed  or  express  commands,  and  the 
unrevealed  or  tacit.  As  the  index  to  the  tacit  commands  of  the  Deity,  the 
author  adopts  the  theory  of  utility,  and  prefers  it  to  either  that  of  a  moral 
sense,  or  to  one  compounded  of  the  two.  This  is  discussed  at  great  and 
perhaps  disproportionate  length. 

Laws  are  a  species  of  commands  (p.  12).  Commands  are  of  two  species, 
"  Laws  or  Rules,"  and  "  occasional  or  particular  commands." 

A  command  is  a  wish  expressed  by  one  rational  being  to  another,  that  the 
latter  do  or  forbear  something,  under  the  penalty  of  evil  proceeding  from  the 
former,  and  to  be  incurred  by  the  latter  in  caso  of  non-compliance  (p.  11). 
Command  also  implies  the  idea  of  superiority  on  the  part  of  the  person  uttering 
it  (p.  20).  It  is  a  wish,  with  the  power  and  purpose  of  enforcing  it  (p.  6). 

Wherever  there  is  the  smallest  chance  of  incurring  the  smallest  evil,  the 
expression  of  a  wish  amounts  to  a  command,  and  imposes  a  duty  (p.  9). 


188  AUSTIN   ON  JURISPRUDENCE. 

Command  and  duty  are  correlative  terms  (p.  7). 

Command  and  duty,  or  obligation  and  sanction,  are  inseparably  connected 
terms  (p.  11). 

Thus  far,  Mr.  Austin's  laws  are  undoubtedly  a  species  of  commands,  and 
this  division  of  laws  is  accurate,  though  the  nomenclature  is  perhaps  inapt. 
But  is  the  definition  of  command  entirely  correct  ?  Command  implies  a  duty, 
it  is  said.  What  of  illegal,  criminal,  or  merely  hostile  commands  ?  Take  the 
decree  of  a  revolutionary  or  usurping  power ;  the  "  stand  and  deliver  "  of  a 
highwayman  ;  the  "  surrender  "  of  an  enemy  ;  do  these  impose  duty  or  obli- 
gation 1  If  so,  in  what  sense  of  the  word  ? 

In  one  place  in  Mr.  Austin's  work  (p.  6),  command  implies  power  and  pur- 
pose to  enforce  itself,  and  in  another  (p.  9),  the  least  chance  of  the  enforcement 
makes  it  a  command.  Is  not  this  a  contradiction  ? 

I  proceed  with  the  analysis  of  Mr.  Austin's  work. 

Third  Class  (p.  143). — The  positive  moral  rules  which  are  laws  properly  so 
called,  are : 

First.  Those  imperative  rules  set  by  men  living  in  a  state  of  nature. 

Second.  Those  set  by  sovereigns,  but  not  as  political  superiors. 

Third.  Those  set  by  subjects  as  private  persons,  and  not  in  pursuance  of 
legal  rights. 

1st.  As  an  instance  of  this,  any  imperative  rule  imposed  by  man  in  a 
state  of  nature  ;  though,  because  he  is  in  a  state  of  nature,  it  is  not  imposed  in 
pursuance  of  any  legal  right. 

2d.  Laws  imposed  by  one  sovereign  or  supreme  Government,  on  another 
sovereign  or  supreme  Government. 

3d.  Laws  or  rules  set  by  parents  to  children,  masters  to  servants ;  by 
lenders  to  borrowers  ;  by  patrons  to  parasites  ;  rules  of  clubs.  These  all  pro- 
ceed from  determinate  sources,  but  they  are  set  by  persons,  as  private  persons, 
and  not  in  pursuance  of  legal  rights.  I  may  remark,  that  to  class  rules  set  by 
patrons  to  parasites,  under  positive  moral  rules  (p.  146),  seems  a  not  very 
happy  nomenclature. 

The  positive  moral  rules  which  are  laws  improperly  so  called,  are  such  as 
laws  of  honor,  laws  of  fashion,  law  of  nations  set  by  opinions  current  among 
nations.  Here  there  is  no  determinate  author  and  no  strict  sanction ;  and  their 
chief  analogy  to  a  law  is  that  the  party  violating  will  suffer  some  evil  conse- 
quence, and  hence  uniformity  is  produced. 

Sect.  6th,  p.  196. — In  order  to  complete  the  explanation  of  the  marks  dis- 
tinguishing positive  laws,  the  author  in  this  chapter  defines  various  terms — such 
as  sovereignty,  subjection,  independent  political  society,  unconstitutional ;  and 
in  this  he  incidentally  discusses  the  division  of  powers  into  legislative  and  ex- 
ecutive, or  administrative.  I  cannot  but  think  that  this  chapter  would  have 
been  fuller,  the  analogies  more  ample,  and  objections,  which  naturally  suggest 
themselves,  more  completely  answered,  if  the  writer  had  been  more  familiar 
with  our  complex  political  organization.  For  instance,  Mr.  Austin  says, — "  In 
-the  State  of  New  York,  the  ordinary  legislation  of  the  State  is  controlled  by 


AUSTIN  ON    JURISPRUDENCE.  189 

an  extraordinary  Legislature.  The  body  of  citizens  appointing  the  ordinary 
Legislature  forms  an  extraordinary  and  ulterior  Legislature,  by  which  the  Con- 
stitution of  the  State  was  directly  established,  and  every  law  of  the  ordinary 
Legislature  which  conflicted  with  a  constitutional  law  directly  proceeding  from 
the  extraordinary,  would  be  treated  by  the  courts  of  justice  as  a  legally  invalid 
act.  That  such  an  extraordinary  and  ulterior  Legislature  is  a  good  or  useful 
institution,  I  pretend  not  to  affirm.  I  merely  affirm  that  the  institution  is  pos- 
sible, and  that  in  one  political  society  the  institution  actually  obtains."  Not  a 
very  audacious  affirmation,  considering  that  this  "institution"  is  the  funda- 
mental legal  idea  in  thirty-two  "  political  societies  "  called  States  of  the  Union, 
as  well  as  of  the  Union  itself. 

Mr.  Austin  is  a  disciple  of  Bentham.  His  work  is,  as  I  have  said,  one  of 
the  few  works  which  this  century  has  produced,  in  our  language,  of  abstract 
disquisition  on  the  subject  to  which  it  relates.  I  think  his  power  of  reasoning 
more  remarkable  than  the  fitness  of  his  nomenclature.  But  the  work  is  very 
valuable,  and  will  well  repay  a  careful  perusal.  It  has  never  been  republisbed 
in  this  country. 


CHAPTER  VI 

GENERAL  RULES  FOR  THE  CONSTRUCTION  OF  STATUTES.  • 

General  Rules  for  the  Construction  and  Interpretation  of  Statutes. — Necessity  for 
Construction  and  Interpretation  growing  out  of  the  Ambiguity  of  Language  and 
other  Causes. — Various  Rules  given  by  Standard  Writers. — Vattel's  Rules. — 
Domat's  Rules. — Rutherforth's  Rules. — Mackeldey's. — Lieber's. — Rules  of  our  Law. 
— Intention  of  the  Legislature  to  Govern. — Mode  of  arriving  at  the  Legislative 
Intention. — Lord  Coke's  Rules. — Blackstone's  Rules. — Statutes  in  pari  materia. — 
Contemporaneous  Exposition. — Legislative  Exposition. — Judicial  Construction. — 
Usage. — Language  used  in  Statutes. — Technical  Terms. — Liberal  and  Strict  Con- 
struction. 

IT  is  hardly  necessary  to  assert  the  proposition,  that  in  the 
use  of  language  uncertainty  and  ambiguity  are  sure  to  occur. 
Contracts,  treaties,  statutes,  and  the  books  of  our  religion  itself, 
furnish  instances  that  will  at  once  present  themselves  in  num- 
bers to  the  mind.  The  imperfection  of  language  is  a  serious 
evil  when  it  occurs  in  those  legislative  commands  on  which  the 
repose,  discipline,  and  well  being  of  society  depend.  In  regard 
to  laws,  as  in  other  cases,  difficulties  will  arise,  in  the  first  place 
from  the  disputed  meaning  of  individual  words,  or,  as  is  usually 
said,  of  the  language  employed ;  and  in  the  second  place,  as- 
suming the  sense  of  each  separate  word  to  be  clear,  doubt  will 
result  from  the  whole  context.  It  is  to  meet  cases  of  these  two 
kinds  that  principles  of  interpretation,  or  construction,  become 
necessary :  and  leaving  out  of  view,  for  the  present,  the  rules 
by  which  the  sense  of  single,  words,  phrases,  and  technical 
terms  is  arrived  at,  we  shall  first  consider  the  general  principles 
of  interpretation. 

Many  efforts  have  been  made  to  lay  down  precise  and  posi- 
tive rules  for  the  construction  of  statutes ;  and  in  order  to 
facilitate  this,  a  nomenclature  has  been  sought  to  classify  differ- 
ent modes  or  species  of  interpretation.  So,  Vattel  uses  the 


RULES  OF  INTERPRETATION.  191 

terms  extensive  and  restrictive  interpretation ;  Rutherforth, 
liberal,  natural,  and  mixed ;  and  Mackeldey,  authentica,  usualis, 
and  doctrinalis.  Professor  Lieber  has  endeavored  to  carry  this 
refinement  to  still  greater  length.  He  distinguishes  between 
interpretation*  and  construction,  and  divides  the  former  into 
close,  extensive,  extravagant,  limited  or  free,  predestinated  and 
authentic ;  and  the  latter  into  close,  comprehensive,  transcend- 
ent, and  extravagant. 

Under  these  classifications  it  has  been  attempted  to  frame 
formal  rules  for  the  various  modes  of  interpretation,  as — It  is 
not  allowable  to  interpret  what  lias  no  need  of  interpretation. — . 
When  we  see  what  is  the  sense  that  agrees  with  the  intention  of 
the  instrument,  it  is  not  allowable  to  wrest  the  words  to  a  confoary 
'meaning. — No  text  imposing  obligations  is  understood  to  demand 
impossible  things. 

And  to  elucidate  the  use  of  these  definitions,  and  the 
application  of  these  rules,  cases  actual  or  possible  are  resorted 
to,  exhibiting  many  varieties  of  doubt  and  difficulty.  So,  if 
by  the  terms  of  a  treaty,  a  town  is  not  to  be  surrounded  by 
walls,  the  question  is  asked,  whether,  upon  a  proper  construc- 
tion, it  may  be  inclosed  with  fosses  and  ramparts.  So  the  law 
condemns  to  death  him  who  strikes  his  father.  Shall  we 
punish  him  who  strikes  and  shakes  his  father  to  recover  him 
from  a  fit  ?  So,  where  it  was  enacted  that  whosoever  drew 
blood  in  the  public  highway  should  be  severely  punished,  a 

*  The  following  is  Prof.  Lieber's  deriva-  this  day,  in  some  parts  of  Germany,  speaking 

tion  of  the  word  Interpret :  "  To  interpret,  as  loud  and  monotonously.     Prcedicare,  and  the 

is  well  known,  is  derived  from  the  Latin  in-  Greek  <ppa$ctv,  belong  to  the  same  family  of 

terpres,  interpretari,  a  compound  of  inter  and  words.      It  is  very  possible  that  pretari  and 

pretari.   The  latter  belongs,  as  nearly  all  truly  prating  are  of  the  same  root  with  broad — 

Latin  words,  according  to  its  root,  to  that  Ian-  German,  breit — speak  broadly,  plainly.     The 

guage  which  was  spoken  by  the  original  inhab-  present   German   word    for    interpreting    is 

itants  or  settlers  of  Europe,  and  of  which  the  auslegen,  laying  out,  laying  open,  unfolding." 

Gothic,  ancient  High  German,  Swedish,  Ice-  — Lieber's  Legal  and  Political  Hermeneutifs 

landic,   Latin,   <fcc.,   are  but   descended,  and  (1839),  p.   20,    in  note.      The    etymologists, 

which  was  likewise  either  the  first  foundation  however,  do  not  agree.      Richardson's  Dic- 

of  the  Greek,  or  so  strongly  influenced  it,  that  tionary  (1 839)  says,  "  Interpret,  interpretari, 

the  root  of  innumerable  words  is  easily  traced  of  uncertain  etymology,"  and  gives,  with  a 

through  all  these  languages.''     *     *     " Pre-  query,  " Pretari,  from  luparmv."     I  have  an- 

tari  is  of  the  same  root  with  many  words  in  nexed  to  th's  chapter  copious  extracts  from 

Teutonic  languages:    Praia,  in  Swedish,  is  the  works  ol  Vattel,  Domat,  and  Professor 

speaking.     We  have  prating  and  prattling.  Lieber,  which  will  serve  to  illustrate  their 

The  German  reden  (pronounced  raden),  speak-  mode   of  reasoning  on   the  subject,  and  to 

ing,  is  the  same  ;  for  d  and  t  easily  change,  compensate  for  any  error  that  I  may  make  in 

while  a  consonant  before  another  (a  p  in  this  underrating  the  value  of  the  careful  classifi- 

case)  is  frequently  dropped  ;    or  it  may  be  cations  and  nicely  drawn  rules  of  the  writers 

that  reden  is  the  original.     Pralen  signifies  to  of  this  class. 


192  KULES    OF    INTERPRETATION. 

barber  opened  a  vein  of  a  person  taken  in  the  street  with 
apoplexy.     Was  he  guilty  or  not  ? 

These  and  similar  discussions  have  amused  the  fancy  and 
exhausted  the  arguments  of  text  writers.  I  cannot,  however, 
consider  them  of  much  value  for  the  student  of  jurisprudence. 
Ours  is  eminently  a  practical  science.  It  is  only  by  an  intimate 
acquaintance  with  its  application  to  the  affairs  of  life,  as  they 
actually  occur,  that  we  can  acquire  that  sagacity  requisite  to 
decide  new  and  doubtful  cases.  Arbitrary  formulae,  meta- 
physical subtleties,  fanciful  hypotheses,  aid  us  but  little  in  our 
work. 

Nor  do  I  believe  it  easy  to  prescribe  any  system  of  rules  of 
interpretation  for  cases  of  ambiguity  in  written  language,  that 
will  really  avail  to  guide  the  mind  in  the  decision  of  doubt. 
It  is  with  the  utmost  difficulty,  if  at  all,  that  we  can  define  or 
direct  any  one  intellectual  process.  How  is  it  to  be  expected 
that  we  can,  with  success,  lay  down  rules  which  are  generally 
to  govern  the  operations  of  the  mind  ?  The  attempt  is  ingen- 
ious, metaphysically  curious,  but  of  little  practical  utility  in 
the  study  or  the  application  of  the  science  of  the  law.  What 
is  required  in  this  department  of  our  science  is  not  formal 
rules,  or  nice  terminology,  or  ingenious  classification ;  but  that 
thorough  intellectual  training,  that  complete  education  of  the 
mind,  which  lead  it  to  a  correct  result,  wholly  independent  of 
rules,  and,  indeed,  almost  unconscious  of  the  process  by  which 
the  end  is  attained.  It  would  seem  as  vain  to  attempt  to  frame 
positive  and  fixed  rules  of  interpretation,  as  to  endeavor  in  the 
same  way,  to  define  the  mode  by  which  the  mind  shall  draw 
conclusions  from  testimony. 

Still,  although  we  may  reject  the  curious  nomenclature,  and 
the  arbitrary  rules  to  which  I  have  referred,  it  is  not  to  be 
supposed  that  a  subject  so  important  as  the  construction  and 
interpretation  of  laws  is  to  be  left  to  the  mere  arbitrary 
discretion  of  the  judiciary.  This  would  be  to  put  in  their 
hands  power  really  superior  to  that  of  the  Legislature  itself. 

\ There  must  be  some  general  principles  that  control  the  matter; 

and  I  believe  it  will  be  found  that  the  principles  which  control 
the  interpretation  of  statutes  may,  for  all  practical  purposes,  be 


OBJECTS  OF  INTERPRETATION.  193 

not  unaptly  arranged  under  the  same  heads,  and  reduced 
analytically  to  the  same  elements,  as  all  other  branches  of  legal 
inquiry.  In  all  cases  of  judicial  examination  we  have  two  great 
heads  of  investigation : 

1st.  The  object  to  be  attained.  This  is,  in  all  cases,  a 
question  of  fact.  We  do,  indeed,  distinguish  in  our  ordinary 
legal  language  between  questions  of  fact  and  questions  of  law; 
but  this  is  only  with  reference  to  the  tribunal,  i.  e.,  the  judge 
or  the  jury,  which  is  to  decide.  The  question  is  always  one  of 
fact.  The  only  difference  is  the  nature  of  the  fact.  It  is  not 
always  a  physical  fact,  but  it  must  be  a  fact.  So  we  say  the 
construction  of  a  doubtful  provision  in  a  will  is  a  question  of 
law,  but  the  point  to  be  decided  is  really  one  of  fact ;  it  is, 
generally,  what  was  the  intention  of  the  testator  ?  So  in  regard 
to  the  construction  of  statutes,  the  questions  that  arise  are,  in 
one  sense,  questions  of  law,  that  is  to  say,  they  are  to  be 
decided  by  the  court ;  but  in  reality,  as  we  shall  see,  the  court 
have,  as  a  general  rule,  only  to  discuss  and  determine  a  ques- 
tion of  fact. 

2d..The  means  to  be  employed.  In  regard  to  trials  of 
fact,  this  is  controlled  by  the  rules  of  evidence ;  in  regard  to 
general  questions  of  law,  by  positive  rules  to  be  found  in 
statutes  or  in  adjudged  cases.  Such,  too,  will,  I  believe,  be 
found  the  true  analysis  of  our  rules  in  regard  to  the  construc- 
tion of  statutes. 

First.  The  object  to  be  attained.  This  is,  as  a  general  rule, 
the  intention  of  the  Legislature. 

Second.  The  means  to  be  employed ;  i.  e.,  what  facts  within 
and  without  the  statute  are  to  be  inquired  into  to  ascertain  the 
intent  of  the  doubtful  phraseology.  To  be  more  precise : 

The  object  to  be  attained.  We  have  said  that  the  object  of 
judicial  investigation  is,  as  a  general  rule,  to  determine  some 
fact.  So  is  it  in  regard  to  the  construction  of  statutes,  with 
the  exception  of  constitutional  questions,  and  also  of  those 
cases  arising  under  the  doctrine  of  liberal  and  strict  construc- 
tion, where,  as  we  shall  see  hereafter,  the  judicial  function  is 
blended  with  and  lost  in  the  legislative  attributes.  Where  a 
statute  appears  to  be  of  a  doubtful  meaning,  the  courts  have 

13 


194  THE   INTENT  OF  THE   LEGISLATURE. 

the  power  to  construe  it.     In  discharging  this  duty,  the  first 
thing  is  to  have  a  clear  idea  of  the  object  in  view.     What  is 
doubtful  ?    The  answer  evidently  is,  the  intent  of  the  Legisla- 
\   twre  who  passed  the  act.     What  did  the  Legislature  in  fact 
Intend  ?     The  doubt  does  not  refer  to  the  policy  of  the  act ; 
for  with  that,  as  we  have  seen,  the  judges  have  nothing  to  do. 
They  are  judges,  and  not  law-makers.     Nor  does  the  doubt 
regard  the  motive  of  the  legislator,  for  over  that  the  judges 
Lave  no  right  of  control.     As  little  does  the  doubt  refer  to  the 
motive  of  the  parties,  or  their  knowledge  of  the  law;  for  of 
these  as  we  have  seen,  with  the  exception  of  those  cases  where 
the  essence  of  crime  depends  on  motive,  the  judges  take  no 
notice.     It  then  follows,  necessarily  and  unavoidably,  that  if 
the  judges  are  to  execute  the  will  of  the  Legislature,  and  if 
they  are  to  disregard  the  motives  and  knowledge  of  the  parties, 
the  only  doubt  that  can  arise  in  applying  a  statute  must  be  as 
to  the  meaning  of  the  Legislature;  subject,  however,  as  has 
been  already  said,  to  the  exception  of  those  cases,  which  will 
be  noticed  in  the  next  chapter,  where  there  is  no  guide  to  the 
legislative  meaning,  and  where,  consequently,  the  judicial  func- 
tion is  really  merged  in  the  legislative. 

We  may,  therefore,  affirm,  as  a  general  truth,  that  independ- 
ently of  constitutional  questions,  and  independently  of  those 
doctrines  of  liberal  and  strict  construction  which  really,  as  I 
have  said,  vest  a  sort  of  legislative  power  in  the  judge,  the 
object  and  the  only  object  of  judicial  investigation,  in  regard 
to  the  construction  of  doubtful  provisions  of  statute  law,  is  to 
ascertain  the  intention  of  the  Legislature  which  framed  the 
statute.  This  rule,  though  often  asserted,  has  been  in  practice 
frequently  lost  sight  of;  but  there  is  abundant  authority  to 
sustain  it.  "The  only  rule,"  says  Lord  Ch.  J.  Tindal,  "for 
-the  construction  of  acts  of  Parliament  is,  that  they  should  be 
construed  according  to  the  intent  of  the  Parliament  which 
passed  the  act."  *  The  rule  is,  as  we  shall  constantly  see, 
•cardinal  and  universal,  that  if  the  statute  is  plain  and  unam- 
biguous, there  is  no  room  for  construction  or  interpretation. 
The  Legislature  has  spoken  ;  their  intention  is  free  from  doubt, 

"*  Dukedom  of  Sussex,  8  London  Jur.  795 ;  Furman  v.  City  of  New  York,  5  Sandf.  16. 


THE  INTENTION  TO  GOVERN.  195 

and  their  will  must  be  obeyed.  "It  may  be  proper,"  it  has 
been  said  in  Kentucky,  "  in  giving  a  construction  to  a  statute, 
to  look  to  the  effects  and  consequences  when  its  provisions  are 
ambiguous,  or  the  legislative  intention  is  doubtful.  But  when 
the  law  is  clear  and  explicit,  and  its  provisions  are  susceptible 
of  but  one  interpretation,  its  consequences,  if  evil,  can  only  be 
avoided  by  a  change  of  the  law  itself,  to  be  effected  by  legisla- 
tive, and  not  judicial  action."*  So,  too,  it  is  said,  by  the 
Supreme  Court  U.  S. :  "  Where  a  law  is  plain  and  unambig- 
uous, whether  it  be  expressed  in  general  or  limited  terms, 
the  Legislature  should  be  intended  to  mean  what  they  have 
plainly  expressed,  and  consequently  no  room  is  left  for  con- 
struction." f 

Thus  it  is  only  when  the  language  is  ambiguous  that 
the  courts  are  called  on  to  construe  or  interpret ;  and  then, 
as  I  have  said,  the  object  is  to  ascertain  the  intent  of  the 
Legislature.  So,  where  a  statute  declared,  that  if  a  corporation 
did  not  organize  and  commence  its  business  within  a  year  from 
the  time  of  the  passage  of  the  charter,  it  should  become  void, 
a  company,  formed  under  the  statute,  did  not  organize  or 
commence  its  business  within  the  year;  but  within  that  time, 
and  eighteen  days  'before  its  expiration,  an  act  was  passed 
amending  the  charter,  continuing  the  directors  in  office  for  a 
year,  and  authorizing  the  stock  subscription  books  to  be  again 
opened.  It  was  held,  that  the  fair  construction  of  the  amenda- 
tory act,  was  to  give  the  company  one  year  from  the  time  of  its 
passage  for  its  organization  and  the  commencement  of  its 
business,  on  the  ground  that  it  was  wholly  improbable  that 
the  Legislature  expected  or  intended  that  the  company  should 
complete  its  organization  and  commence  its  business  within 
"  the  short  space  of  eighteen  days."  J 

"  It  is  a  sound  principle,"  say  the  Court  of  Appeals  in  New 
York,  "  that  such  a  construction  ought  to  be  put  upon  a 
statute  as  may  best  answer  the  intention  which  the  makers  had 
in  view ;  and  that  is  sometimes  to  be  collected  from  the  cause 

*  Bosely   v.    Mattingly,   14    B.   Monroe,       .   \  Johnson  v.  Bush,  3  Barb.  Ch.  R.  207  & 
Kentucky,  89.  238;  see  also  Young  v.  Dake,  1  Selden,  463. 

f  Fisher  v.  Blight,  2  Cranch,  358,  399; 
Case  T.  Wildridge,  4  Indiana,  51. 


196.  THE    INTENTION  TO  GOVERN. 

or  necessity  of  making  it,  at  other  times  from  other  circum- 
stances. Whenever  the  intention  can  be  discovered  it  ought  to 
i  be  followed,  with  reason  and  discretion,  in  its  construction, 
although  such  construction  may  seem  contrary  to  its  letter." 
In  this  case  the  following  point  was  decided  in  regard  to  wills  : 
The  signature  of  the  testator  was  always  required ;  but  both 
in  England  and  here,  it  had  been  held,  that  the  writing  of  the 
name  of  the  testator  in  the  body  of  the  will,  if  written  by 
himself  with  the  intent  of  giving  validity  to  the  will,  was  a 
sufficient  signing  within  the  statute.  To  meet  this,  the  Revised 
Statutes  of  New  York  provided,  that  wills  should  be  subscribed 
by  the  testator  at  the  end  of  the  will.  In  a  case  where  a  will 
was  made  with  a  map,  so  annexed  as  to  make  part  of  the 
instrument,  and  the  testator's  signature  was  affixed  at  the  end 
of  the  testamentary  part  of  the  document,  but  not  of  the 
whole  instrument,  it  was  held,  on  the  ground  that  the  intent  of 
the  statute  was  satisfied,  that  the  will  was  valid.* 

In  New  York  a  quo  warranto  being  brought  against  the 
Utica  Insurance  Company,  for  exercising  banking  powers,  the 
right  claimed  by  the  defendant  was  held  to  be  so  manifestly 
repugnant  to  the  general  scope  and  object  of  the  act  of  in- 
corporation, as  to  be  evidently  contrary  to  the  intention  of  the 
Legislature;  and  on  this  ground,  judgment  of  ouster  was 
rendered.  Thompson,  J.,  said  : 

"That  in  construing  a  statute,  the  intention  of  the  Legislature  is  a  fit  and 
proper  subject  of  inquiry,  is  too  well  settled  to  admit  of  dispute.  That 
intention  is  to  be  collected  from  the  act  itself,  and  other  acts  in  part  materia. 
It  may  not  however,  be  amiss  to  state  and  keep  in  view  some  of  the  established 
and  well-settled  rules  on  the  subject.  Such  construction  ought  to  be  put  upon 
a  statute  as  may  best  answer  the  intention  which  the  makers  had  in  view. 
And  this  intention  is  sometimes  to  be  collected  from  th«  cause  or  necessity  of 
making  the  statute,  and  sometimes  from  other  circumstances  ;  and  whenever 
such  intention  can  be  discovered,  it  ought  to  be  followed,  with  reason  and 
discretion,  in  the  construction  of  the  statute,  although  such  construction  seem 
contrary  to  the  letter  of  the  statute.  Where  any  words  are  obscure  or  doubt- 
;  ful,  the  intention  of  the  Legislature  is  to  be  resorted  to,  in  order  to  find  the 
meaning  of  the*  words.  A  thing  which  is  within  the  intention  of  the  makers 
of  aTstatute,  is  as  much  within  the  statute  as  if  it  were  within  the  letter;,  and 
a  thing  which  is  within  the  letter  of  the  statute  is  not  within  the  statute,  unless 
*  Tonnele  v.  Hall,  4  Comstock,  140. 


THE  MEANS  TO  BE  EMPLOYED.  197 

it  be  within  the  intention  of  the  makers ;  and  such  construction  ought  to  be 
.put  upon  it  as  does  not  suffer  it  to  be  eluded."  * 

So  in  the  same  State,  where,  by  a  statute  concerning  judg- 
ments and  executions,  it  was  declared  not  be  lawful  for  any 
sheriff  or  other  officer,  to  whom  any  writ  of  execution  should 
be  directed,  or  any  of  their  deputies,  to  purchase  any  property 
at  the  execution  sale,  it  was  held  that  it  never  could  have  been 
the  intention  of  the  Legislature  to  have  prevented  a  deputy 
sheriff,  when  plaintiff  in  an  execution,  from  bidding,  in  order 
to  secure  his  own  money.  The  object,  it  was  said,  was  to 
prevent  abuse, — that  the  sheriff  or  his  deputies  should  not  be 
allowed  to  make  purchases  at  their  own  sales,  and  thereby  be 
induced  to  conduct  themselves  corruptly  in  relation  to  them. 
But  it  never  could  have  been  intended  to  place  these  persons 
in  a  worse  situation  than  others  as  to  the  collection  of  their 
own  demands,  f 

So  again,  in  the  same  State,  as  to  the  revivor  of  an  act  by 
implication,  but  not  in  terms.  % 

On  the  same  principle,  too,  it  has  been  held,  in  many  cases, 
that  the  mere  change  in  the  phraseology  of  a  statute  will  not 
be  deemed  to  alter  the  law,  unless  it  evidently  appears  that 
such  was  the  intention  of  the  Legislature.  This  rule  has  been 
frequently  laid  down  in  regard  to  the  modified  re-enactment 
of  British  statutes,  and  the  revision  of  our  own,  in  the  differ- 
ent States.  | 

The  notion  that  the  intention  of  the  Legislature  is  to  govern 
Jias,  indeed,  as  we  shall  see,  often  been  carried,  in  one  sense, 
much  too  far,  and  the  judiciary  have  sometimes  endeavored  to 
discover  and  declare  a  legislative  intent  in  direct  defiance  of 
the  language  employed,  and  in  utter  disregard  of  the  proper 
means  to  be  used.  But  the  general  principle  is  only  perhaps 
made  the  more  evident  by  this  strained  application  of  it. 

*  People  T.  Utica  Ins.  Co.  15  J.  R.  358,  regard  to  the  act  relative  to  absconding,  con- 

880.  cealed,   and   uon-resident  debtors  (Matter  of 

f  Jackson  ex  dtm.  Scofield  v.  Collins,  3  Brown,  21  Wend.  316);  and  so  in  regard  to 

Cowen,  p.  89.  the   statute  regulating  the  landlord's   claim 

\  Crocker  v.  Crane,  21  Wendell,  211.  for  rent  due,  under  executions  (In  the  matter 

|  So     in    New   York,  in    regard  to    the  of  Theriat  v.  Hart,  2  Hill,  380).     See  also  as 

statute  of  administrators  (Taylor  v.  Delancy,  to  point  that  intention  is  to  govern,  Cannon 

2    C.   C.    E.     143),  the   habeas    corpus    act  v.  Vaughan,  12  Texas  599 
(Case  of  Yates,  4  J.   K.   318,   359).     So  in 


198  LORD   COKE'S  RULES. 

Considering  it,  then,  to  be  clear  that  the  object  to  be  at- 
tained in  all  cases  of  doubtful  construction  is  the  intention  of 
the  Legislature,  we  next  have  to  consider  the  means  to  be  em- 
ployed to  arrive  at  that  result ;  and  we  cannot,  perhaps,  better 
introduce  the  subject  than  by  the  rules  laid  down  in  regard  to 
construction  by  the  judges  in  the  reign  of  Elizabeth.  "  And  it 
was  resolved  by  the  Barons  of  the  Exchequer,"  says  Lord  Coke, 
u  that  for  the  sure  and  true  interpretation  of  all  statutes  in 
general  (be  they  penal  or  beneficial,  restrictive  or  enlarging 
of  the  common  law),  four  things  are  to  be  discussed  and  consid- 
ered: 

"  1.  What  was  the  common  law  before  the  making  of  the 
act? 

"  2.  What  was  the  mischief  and  defect  for  which  the  com- 
mon law  did  not  provide  ? 

"  3.  What  remedy  the  Parlament  hath  resolved  and  ap- 
pointed to  cure  the  disease  of  the  commonwealth. 

"  4.  The  true  reason  of  the  remedy. 

"  And  then  the  office  of  all  the  judges  is  always  to  make 
such  construction  as  shall  suppress  the  mischief  and  advance 
the  remedy,  and  to  suppress  subtle  inventions  and  evasions  for 
continuance  of  the  mischief  and  pro  privato  commodo,  and  to 
add  force  and  life  to  the  cure  and  remedy,  according  to  the  true 
intent  of  the  makers  of  the  suet, pro  bono  publioo."  * 

*  Heydon's  Case,  3  Rep.  7.  was  made,  by   signs  the  most  natural  and 

I  may  here  notice  the  fact  that  there  is  in  probable.      And  these  signs  are  either  the 

England  a  class  of  exceptions  to  the  usual  words,  the  context,  the   subject-matter,  the 

rules  of  construction,  growing  out  of  what  are  effects   and   consequences,  or  the  spirit  and 

called,  as  we  have  seen,  the  Ancient  Statutes,  reason  of  the  law.     Let  us  take  a  short  view 

"  Prudent  antiquity,"   says  Coke,  "  included  of  them  all. 

much  matter  in  few  words."    2  Inst.  306, 401.  "  1.  Words   are  generally  to  be  under- 

The  early  English  statutes,  written  in  French  stood  in  their  usual  and  most  known  signifi- 

or  Latin,  are  expressed  with  a  brevity  which  cation ;  not  so  much  regarding  the  propriety 

renders  them  now  almost  unintelligible,  and  in  of  grammar,  as  their  general  and  popular  use. 

applying  them  in  modern  times  the  courts  Again,  terms  of  art,  or  technical  terms,  must 

have  thought  themselves  free  to  take  great  be  taken  according  to  the  acceptation  of  the 

liberties  with  the  contents.     It  is,  therefore,  learned  in  each  art,  trade,  and  science.    (Vol. 

with  some  excuse  that  of  these  statutes,  as  we  I,  p.  59. ) 

have  seen,  it  has  been  said  (Sheffield  v.  Red-          "  2.  If  words  happen  to  be  still  dubious, 

cliff,  Hob.  346)  "  that  judges  have  power  over  we  may  establish  their  meaning  from  the  con- 

them  to  mold  them  to  the  truest  and  best  use,  text,  with  which  it  may  be  of  singular  use  to 

according  to  reason  and  best  convenience."  compare  a   word,   or  a  sentence,  whenever 

Blackslone's  rules  of  interpretation  are  as  they  are  ambiguous,  equivocal,  or  intricate, 

follows :  Thus  the  proem  or  preamble  is  often  called  in 

"The  fairest  and  most  rational  method  to  to  help  the  construction  of  an  act  of  Parlia- 

interpret  the  will  of  the  legislator  is  by  ex-  ment.     Of  the   same  nature  and  use  is  the 

ploring  his  intentions  at  the  time  the   law  comparison  of  a  law  with  other  laws  that  are 


THE   MEANS   TO   BE    EMPLOYED. 

These  resolutions  indicate  an  approach  to  the  true  princi- 
ples on  the  subject;  but,  as  we  shall  presently  see,  the  ideas 
are  loosely  expressed.  In  the  first  place,  it  seems  to  be  as- 
sumed that  all  statutes  are  intended  to  remedy  some  mischief 
for  which  the  common  law  did  not  provide.  But  this  is  very 
far  from  being  true.  Again,  the  notion  that  the  object  of  in- 
terpretation is  to  arrive  at  the  legislative  intent,  is  very  clearly 
stated;  but  there  is  great  vagueness  in  regard  to  the  means,  tov 
be  employed  in  attaining  the  end  in  view.  The  nature  of  the; 
means  to  be  made  use  of  is,  however,  a  matter  of  great  import- 
ance and  nicety.  To  this  we  now  turn.  The  means  to  be;  em- 
ployed in  arriving  at  the  legislative  intent  arrange  themselves 
under  two  heads, — first,  those  within  the  statute  under  consid- 
eration ;  and,  secondly,  those  outside  the  statute. 

Of  the  Means  to  be  found  within  the  /Statute  itself. — In  the 
first  place,  it  is  an  ancient  and  well-settled  rule,  that  where  any 
cause  of  doubt  arises,  although  apparently  the  doubt  attaches 
only  to  a  particular  clause,  the  whole  statute  is  to  be  taken 
together,  and  to  be  examined,  to  arrive  at  the  legislative  intent. 
"  The  best  expositor  of  all  letters  patent,"  says  Lord  Coke,  "  and 
acts  of  Parliament,  are  the  letters  patent  and  the  acts  of  Par- 
liament themselves,  by  construction,  and  comparing  all  the 
parts  of  them  together.  Optima  statuti  interpretatio  est  (omni- 
f>us  particulis  ejusdem  inspectis)  ipsum  statutum  ;  injustum  est 
nisi  tota  lege  inspecta,  una  aliqua  ejus  particula  proposita  judi^ 
care  vel  respondere"  (a) 

made  by  the  same  legislator,  that  have  some  of  a  law,  when  the  words  are  dubious,  is  by    j 

affinity  with  the  subject,  or  that  expressly  re-  considering  the  reason  and  spirit  of  it,  or  the>  f 

late  to  the  same  point.  cause  which  moved  the  legislator  to  enact  itv  I 

"3.  As  to  the  subject-matter,  words  are  (Vol.  I,  p.  61.) 

always  to  be  understood  as  having  a  regard          "  There  are  three  points  to  be  considered   , 

thereto  ;  for  that  is  always  supposed  to  be  in  in  the  construction  of  all  remedial  statutes^ 

the  eye  of  the  legislator,  and  all  his  expres-  the  old  law,  the  mischief,  and  the  remedy — . 

sions  directed  to  that  end.  that  is,  how  the  common  law  stood  at  tha 

"  4.  As  to  the  effects  and  consequences,  making  of  the  act,  what  the  mischief  •was  for*   , 

the  rule  is,  where  words  bear  either  none,  or  which  the  common  law  did  not  provide,,  and 

a  very  absurd  signification,  if  literally  under-  what  remedy  the  Parliament  hath  provided 

stood,  we  must  a  little  deviate  from  the  re-  to  cure  this  mischief.     And  it  is  the  business 

ceived  sense  of  them.    (Vol.  I,  p.  60.)  of  the  judges  so  to  construe  the  act,  as  to  sup- 

"  5.  But,  lastly,  the  most  universal   and  press  the  mischief  and  advance  the  remedy.*1 

effectual  way  of  discovering  the  true  meaning  (Vol.  I,  p.  87.) 

(a)  The  intent  is  to  be  gathered  from  the  whole  statute  or  Constitution.  District 
Township,  &c.  v.  Dubuque,  7  Clarke  (la.),  262.  As  illustrations  of  this  rule :  Where 
the  language  of  the  section  prescribing  certain  notice  of  a  sheriff's  sale  is  strong; 


ENTIRE   ACT  TO  BE   EXAMINED. 

The  rule  has  been  repeatedly  affirmed.  So  in  Pennsylvania 
it  has  been  said  that  in  construing  any  part  of  a  law  the 
whole  must  be  considered ;  the  different  parts  reflect  light  on 
each  other ;  and,  if  possible,  such  a  construction  is  to  be  made 
as  will  avoid  any  contradiction  or  inconsistency.*  So  in  Mas- 
sachusetts it  has  been  said  that  in  putting  a  construction  upon 
any  statute,  every  part  shall  be  regarded ;  and  it  shall  be  so 
expounded,  if  practicable,  as  to  give  some  effect  to  every  part 
of  it.f  («)  So  again  in  Michigan  it  has  been  decided  a  cardinal 

*  Commonwealth  v.  Duane,  1  Binn.  601.  f  Commonwealth  v.  Alger,  7  Cush.  53,  89. 

enough  by  itself  to  make  the  sale  void  without  it,  but  the  next  section  imposes  a 
penalty  only  on  the  officer  neglecting  to  give  it  (Smith  v.  Randall,  6  Gal.  47);  and 
where  an  act  provided  in  one  section  for  setting  apart  a  homestead  to  widow  and 
children  free  from  all  debts  of  the  deceased,  but  other  sections  showed  an  intent  to 
subject  the  homestead  to  debts  contracted  prior  to  the  statute  (Simonds  v.  Powers, 
28  Vt.  354) ;  and  where  a  statute  changed  the  time  of  holding  courts,  without  an 
express  saving  clause  of  writs  already  served  and  returnable  at  the  old  term,  such 
writs  were  nevertheless  held  valid.  Barnes  v.  Bell,  10  Rich.  Law,  376. 

But  where  a  Constitution  speaks  in  plain  language  in  reference  to  a  particular 
matter,  the  courts  cannot  put  a  different  meaning  on  the  words  employed  because 
the  literal  interpretation  may  happen  to  be  inconsistent  with  other  parts  of  the  in- 
strument relating  to  other  subjects.  Thus,  where  the  Constitution  expressly  gave 
the  power  to  the  governor  to  fill  vacancies,  the  court  refused  to  hold  that  the  power 
was  to  be  exercised  with  concurrence  of  the  Senate,  as  implied  by  other  sections  on 
other  subjects.  Cantwell  v.  Owens,  14  Md.  215.  When  the  general  purpose  of  a 
statute  is  to  deal  with  after-created  boroughs,  general  language  in  some  portions  of 
it  broad  enough  to  include  existing  ones  will  be  restrained  so  aa  to  agree  with  this 
general  intent.  Commonwealth  v.  Council  of  Montrose,  52  Penn.  St.  391. 

Within  the  limits  of  the  language  used,  the  operation  of  a  statute  may  be  en- 
larged or  restrained  to  carry  out  the  intent.  Thus,  where  a  statute  provided  that  a 
person  should  not  be  sued  before  any  justice  except  in  the  township  where  he  re- 
sided, as  the  intent  of  the  whole  act  was  to  prevent  justices  at  the  county  seat  from 
monopolizing  the  business  of  the  county,  it  was  held  not  to  apply  to  the  case  of  a 
resident  of  another  county  or  State  coming  into  a  town  and  there  served  with 
process.  Maxwell  v.  Collins,  8  Ind.  38. 

(a)  Effect,  if  possible,  must  be  given  to  every  clause.  Brooks  v.  Mobile  School 
Comm'rs,  31  Ala.  227;  San  Francisco  v.  Hazen,  5  Cal.  169;  Leversee  v.  Reynolds,  13 
Iowa,  310;  Cochran  v.  Taylor,  13  Ohio,  N.  S.  382;  McNamara  v.  Minn.  R.  R.,  12 
Minn.  388;  Torreyson  v.  Examiners,  7  Nev.  19;  Aldridge  v.  Mardoff,  32  Tex.  204; 
Dibblee  &  Co.'s  Case,  3  Ben.  (U.  S.  D.  C.)  283;  Davis'  Case,  Ib  .482.  Where  different 
statutes  in  pari  materia  are  passed  on  the  same  day,  they  should  be  so  construed  as 
to  give  effect  to  each,  if  possible  ;  and  where  one  act  going  into  effect  at  its  passage 
prescribed  the  mode  of  making  certain  affidavits,  and  another  going  into  effect  at 
the  close  of  the  session  dispensed  with  such  affidavits  entirely,  it' was  held  that  effect 
should  be  given  to  each.  Fouke  v.  Fleming,  13  Md.  392. 

Where  to  take  words  in  their  technical  sense  would  make  the  statute  inopera- 


MEANS  WITHIN  THE    STATUTE.     ,  201 

rule  that,  in  the  construction  of  a  statute,  effect  is  to  be  given, 
if  possible,  to  every  clause  and  section  of  it ;  and  it  is  the  duty 
of  courts,  as  far  as  practicable,  so  to  reconcile  the  different  pro- 
visions as  to  make  the  whole  act  consistent  and  harmonious. 
If  this  becomes  impossible,  then  we  are  to  give  effect  to  what 
was  manifestly  the  intention  of  the  Legislature,  though  by  so 
doing  we  may  restrict  the  meaning  or  application  of  general 
words.* 

We  have  already  had  occasion  to  notice  the  rule  which 
allows  reference  to  the  preamble,  and  even  the  title,  of  the  act.f 
•"  If,"  says  Lord  C.  J.  Tindal,  "  any  doubt  arise  from  the  lan- 
guage employed  by  the  Legislature,  it  has  always  been  held  as 
a  safe  means  of  collecting  the  intention,  to  call  in  aid  the 
ground  and  cause  of  making  the  statute,  and  to  have  recourse 
to  the  preamble,  which,  according  to  Chief  Justice  Dyer,  is  a 
key  to  open  the  minds?  of  the  makers  of  the  act,  and  the  mis- 
chiefs which  they  intended  to  redress."  %  And  so,  where  the 
preamble  of  an  act  passed  on  the  petition  of  the  corporation  of 
the  city  of  New  York,  recited  the  petition  of  the  corporation 
on  which  it  was  passed,  it  was  held  that  the  preamble  contain- 

*  Attorney-General  ex  rel.  McKay  v.  De-          f  Ante,  pp.  38-40,  42,  et  seq. 
troit  &  Erin  Plank  Road  Co.,  2  Michigan,  138.  j  Dukedom  of  Sussex,  8  Lond.  Jur.  795. 

tive,  they  will  be  taken  according  to  their  popular  sense ;  thus,  of  a  limitation  of 
"  actions  of  debt,"  the  common-law  action  of  debt  not  being  known  in  the  practice 
of  the  State  (Robinson  v.  Varnell,  16  Tex.  382)  ;  and  the  terms  "set-off"  and  "coun- 
ter-claim "  both  being  used  in  a  statute,  it  must  be  presumed  that  both  were  neces- 
sary, and  that  different  things  were  intended  by  them.  Lovejoy  v.  Robinson,  8  Ind. 
399. 

The  same  general  rule  is  to  be  applied  to  a  sentence,  and  some  meaning,  if  possi- 
ble, must  be  given  to  every  word  in  it  (People  v.  Burns,  5  Mich.  114) ;  and  where  a 
given  construction  would  make  a  word  redundant,  that  is  some  reason  for  its  rejec- 
tion. Dearborn  v.  Brookline,  97  Mass.  466.  The  same  rule  applies  as  to  every  word 
•of  the  enacting  clause  (Parkinson  v.  State,  14  Md.  184)  ;  and  none  are  to  be  treated 
as  surplusage  or  as  repetition.  Gates  v.  Sallinon,  35  Cal.  576. 

The  whole  statute  must  be  made  to  harmonize,  if  possible,  all  the  parts  with  each 
other  and  with  the  general  scope.  Ellison  v.  Mobile,  &c.  R.  R.,  36  Miss.  572.  Where 
an  act  directs  specific  things  to  be  done,  and  then  contains  a  general  prohibitory 
clause  broad  enough  to  cover  such  things,  they  will  be  treated  as  excepted  from  the 
prohibition.  De  Winton  v.  Mayor  of  Brecon,  26  Beav.  533.  But  where  certain 
words  make  a  statute  meaningless,  which  is  intelligible  by  omitting  them,  they  may 
be  treated  as  surplusage,  even  in  a  criminal  statute.  U.  S.  v.  Stern,  5  Blatch.  C.  C. 
512. 


202  MEANS   OUTSIDE   OF   THE    STATUTE. 

ing  the  petition  might  be  referred  to,  to  ascertain  the  intention 
of  the  Legislature.* 

We  come  next  to  the  means  to  be  employed  outside  of  the 
statute.  It  is  clear  that  the  judges  are  to  inform  themselves  of 
the  previous  state  of  the  law,  and  of  the  mischiefs  which  the 
statute  to  be  construed  was  passed  to  obviate.  And  the  prin- 
ciple has  been  frequently  acted  on.  The  following  case  pre- 
sents a  strong  instance  of  the  application  of  Lord  Coke's  rule, 
that  in  construing  a  statute,  the  antecedent  legislation  is  to  be 
kept  in  view.  A  junior  creditor  applied  to  redeem  lands  sold 
under  execution,  the  statute  declaring  that  when  this  is  done, 
the  creditor  applying  to  redeem  shall  present  to  the  sheriff  a 
copy  of  the  docket  of  the  judgment  under  which  he  claims. 
This  formality  was  omitted ;  and  it  was  insisted  that  the  stat- 
ute was  merely  directory,  and  ought  to  be  dispensed  with. 
But  it  was  decided  otherwise;  and  in  so  doing  reliance  was 
placed  on  the  previous  legislation,  and  this  language  was  held : 
"  The  act  of  1826  did  not  prescribe  the  evidence  to  be  produced 
by  a  creditor  claiming  the  right  to  redeem.  The  consequence 
was,  that  this  matter  was  left,  in  a  great  degree,  to  the  discre- 
tion of  the  sheriff  and  his  deputies.  Different  officers  were  at 
liberty  to  adopt  different  rules  of  proceeding;  and  the  same 
officer  might  sometimes  receive,  and  at  other  times  reject,  the 
same  kind  of  evidence.  Besides  leaving  the  parties  in  doubt 
and  uncertainty  about  their  legal  rights,  a  wide  door  was  left 
open  for  favoritism  and  injustice.  To  remedy  these  evils,  the 
Legislature,  in  1830,  specially  prescribed  the  evidence  which 
should  be  presented  by  the  creditor;  and  thus  made  the  rights 
of  the  parties  depend,  not  on  the  discretion  of  the  officer,  but 
on  the  law  of  the  land.  That  this  was  a  salutary  provision  can 
hardly  be  doubted ;  but  if  it  were  otherwise,  the  remedy  be- 
longs to  another  branch  of  the  Government."  f  And  the  bill 
filed  to  redeem  was  dismissed. 

But  when  it  is  said  that  the  judges  are  to  take  into  consid- 
eration the  previous  state  of  the  law,  and  the  mischiefs  which 
the  enactment  was  intended  to  prevent,  a  doubt  at  once  sug- 

*  Furman  v.  The  City  of  New   York,   5          f  Waller  v.  Harris,  20  Wend.  555. 
Sand.  16. 


LEGISLATIVE   INTENT,   HOW   ASCERTAINED.  203 

gests  itself  as  to  the  mode  to  "be  pursued  and  the  evidence  to 
be  required.  The  judges  may  be  supposed  to  have,  and  may 
perhaps  be  reasonably  charged  with,  a  knowledge  of  the  exist- 
ing state  of  the  law  at  any  given  time ;  but  how  are  they  to 
know  the  exact  mischiefs  which  the  legislator  had  in  view  ? 
They  cannot  be  presumed  to  have  any  official  knowledge  of  the 
general  state  of  the  community,  or  of  every  local  disturbance  or 
local  want.  What  means  are  they,  then,  to  employ  ?— what 
evidence  to  consult  ?  All  this  is  left  very  much  in  the  dark  by 
Lord  Coke  and  his  successors.  We  are  not  to  suppose  that  the 
courts  will  receive  evidence  of  extrinsic  facts  as  to  the  intention 
of  the  Legislature ;  that  is,  of  facts  which  have  taken  place  at 
the  time  of,  or  prior  to,  the  passage  of  the  bill.  So  in  Pennsyl- 
vania, in  regard  to  the  construction  of  a  bank  charter,  where  it 
was  contended  that  the  bank  was  exempt  from  taxation,  it  was 
held  that  the  evidence  of  public  embarrassment,  the  proclama- 
tion and  message  of  the  governor,  the  journals  of  the  House  of 
Representatives,  and  the  reports  of  committees,  should  be 
wholly  disregarded.*  "  The  journals  are  not  evidence,"  say  the 
same  court,  in  a  still  more  recent  case,  "  of  the  meaning  of  a 
statute ;  because  this  must  be  ascertained  from  the  language  of 
the  act  itself,  and  the  facts  connected  with  the  subject  on  which 
it  is  to  operate."f 

On  the  other  hand,  there  is  no  doubt  that  very  eminent 
judges  have,  in  the  construction  of  statutes,  been  wont  to  per- 
mit their  minds  to  be  influenced,  and  in  fact  to  take  a  sort  of 
judicial  cognizance  of  many  extrinsic  facts,  in  regard  to  which 
evidence  certainly  would  not  have  been  permitted,  and  which, 
indeed,  could  not  perhaps  be  proved,  (a) 

*  Bank  of  Pennsylvania  v.  Commonwealth,  ruled  in  this  last  case,  that  the  journals  are 

7  Penn.  State  R.  144.  the  highest  evidence  of  the  fact  of  the  enact- 

f  The  Southwark  Bank  v.  The  Common-  ment  of  a  law,  or  of  any  other  fact  connected 

wealth,  26  Penn.  State  R.  446.  But  it  is  also  with  its  passage. 

(a)  The  intent  is  the  object  of  construction,  but  it  is  first  to  be  sought  in  the 
words  of  the  statute,  Virginia,  &c.  R.  R.  v.  Lyon  Co.  Comm'rs,  6  Nev.  68 ;  it  is 
to  be  sought,  but  not  at  the  expense  of  the  clear  meaning  of  the  words,  Leoni  T. 
Taylor,  20  Mich.  148.  Statutes  are  to  be  construed  with  reference  to  the  object  to 
be  accomplished  by  them ;  thus  where  the  object  of  an  act  was  the  disposal  of  the 
water-lot  property  of  a  city,  and  in  the  description  of  such  property,  the  side  of  a 
street,  which  in  fact  extended  along  only  a  part  of  the  water  lot,  was  referred  to  as 


204  LEGISLATIVE   INTENT,   HOW    ASCERTAINED. 

The  English  statute,  26  Geo.  II,  c.  23,  declared  all  marriages 
•of  children  under  age  void,  unless  the  consent  of  the  parents  or 
guardians  was  first  obtained.  The  question  was  brought  before 
the  King's  Bench,  whether  the  act  was  to  be  interpreted  to  in- 
clude illegitimate  children ;  and  Lord  Mansfield,  •  in  holding 
that  it  did  so,  put  his  decision  on  the  ground  of  the  mischiefs 
which  the  act  was  intended  to  obviate :  "  This  act  was  passed 
in  order  to  prevent  the  illegal  practice  of  clandestine  marriages, 
which  were  become  so  very  enormous,  that  places  were  set 

a  boundary  of  the  lot,  such  reference  was  held  not  to  extend  the  street  itself  in 
length.  People  v.  Dana,  22  Cal.  11.  As  another  example  of  this  general  doctrine, 
an  act  requiring  the  consent  of  "  residents  "  to  the  bonding  of  a  town,  was  held  not 
to  include  a  canal  corporation  whose  canal  extended  through  the  town.  People  v, 
Schoonmaker,  68  Barb.  44.  It  may  well  be  doubted,  however,  whether  the  principle 
was  properly  applied  in  this  case.  As  the  general  theory  of  the  statute  was  to  get 
the  consent  of  a  majority,  in  number  and  in  respect  to  property,  of  "  resident"  tax- 
payers, so  that  those  who  would  pay  the  debt  should  be  heard  in  its  creation,  and 
as  the  canal  corporation  was  by  far  the  largest  taxpayer  of  the  town,  and  as  corpora- 
tions are  constantly  treated  as  "  residents,"  for  the  purposes  of  taxation,  it  would 
seem  that  the  principle  invoked  by  the  court  should  have  led  it  to  exactly  the 
opposite  construction. 

A  statute  is  to  be  construed  with  reference  to  the  circumstances  at  the  time  and 
the  necessity  of  enacting  it ;  thus  an  act  as  to  service  of  process  in  civil  actions,  was 
held  not  to  require  any  filing  of  the  complaint  as  a  first  step,  because  of  the  delay 
and  expense  of  travel  that  would  thus  be  caused  to  suitors.  Keith  v.  Quinney,  1 
Oregon,  364.  Supposed  policy  of  the  Government  as  to  the  particular  subject  is, 
however,  entitled  to  but  little  weight.  Hadden  v.  Collector,  5  Wall.  107.  Intent  is 
to  prevail  even  over  legislative  construction,  when  such  construction  obviously  re- 
sults from  misapprehension.  Turney  v.  Wilton,  36  HI.  385 ;  and  words  may  be 
treated  as  surplusage  when  necessary  to  carry  out  the  intent.  U.  S.  v.  Stern,  5 
.  Blatch.  C.  C.  512.  Where  a  particular  construction,  and  even  the  most  obvious  one, 
would  lead  to  an  unreasonable  result — e.  g.,  would  give  to  the  losing  party  in  replevin 
the  right  to  the  possession  of  the  chattels — a  different  construction  will  be  given,  if 
possible,  without  doing  too  much  violence  to  the  letter.  Haentze  v.  Howe,  28  Wise.  293. 

That  where  the  intent  is  doubtful,  equity  will  construe  as  is  most  convenient  and 
equitable,  see  Jersey  Co.  v.  Davison,  5  Dutch.  415.  If  a  statute  expresses  first  a  gen- 
eral intent,  and  afterwards  an  inconsistent  particular  intent,  the  latter  will  be  taken 
as  an  exception  from  the  former,  and  both  will  stand.  Stockett  v.  Bird,  18  Md.  484, 
where  this  rule  was  applied  to  an  act  which  vested  the  personal  property  of  a  wife 
dying  intestate  absolutely  in  the  husband,  and  which  in  a  subsequent  portion  made 
a  different  disposition  of  choses  in  action  not  reduced  to  possession. 

The  intent  or  opinion  of  individual  legislators,  as  shown  in  the  discussions  upon 
the  bill,  are  entitled  to  little  weight,  if  any.  Leese  v.  Clark,  12  Cal.  387,  425  ;  Tay- 
lor v.  Taylor,  10  Minn.  107.  But  the  general  state  of  opinion,  public,  judicial,  and 
legislative,  at  the  time  of  the  enactment,  may  be  considered.  Keyport  St.  Co.  v. 
Farmers'  Trans.  Co.  3  C.  E.  Green,  13 ;  Delaplane  v.  Crenshaw,  15  Gratt.  457. 


LEGISLATIVE  INTENT,  HOW  ASCERTAINED.  205 

apart  in  the  Fleet  and  other  prisons  for  the  purpose  of  celebrat- 
ing clandestine  marriages.  The  Court  of  Chancery,  on  the 
ground  of  its  illegality,  made  it  a  contempt  of  the  court  to 
marry  one  of  its  wards  in  this  manner.  They  committed  the 
offenders  to  prison ;  but  that  mode  of  punishment  was  found 
ridiculous  and  ineffectual.  Then  this  act  was  introduced  to 
remedy  the  mischief."  * 

It  may  very  well  be  that,  in  the  condition  of  English  juris- 
prudence in  former  times,  when  laws  were  few  and  rarely 
passed,  when  the  business  of  legislation  was  confined  to  a  small 
and  select  class,  to  which  practically  the  judiciary  belonged, 
when  the  legislative  and  the  judicial  bodies  sat  in  the  same 
place,  and,  indeed,  in  the  same  building, — in  such  a  state  of 
things,  it  may  well  be  that  the  judiciary  might  suppose  them- 
selves to  possess,  that  they  might  indeed  really  possess,  a  con- 
siderable personal  knowledge  of  the  legislative  intent,  and  that 
they  might  come  almost  to  consider  themselves  as  a  co-ordinate 
body  with  the  Legislature. 

But  in  modern  societies,  where  the  division  of  political 
attributes  is  so  much  more  nice  and  rigorous,  where  the  busi- 
ness of  legislation  has  become  multifarious  and  enormous,  and 
especially  in  this  country  where  the  judiciary  is  so  completely 
separated  from  the  Legislature,  it  must  be  untrue  in  fact  that 
they  can  have  any  personal  knowledge  sufficient  really  to  in- 
struct them  as  to  the  legislative  intention ;  and  if  untrue  in 
fact,  any  general  theory  or  loose  idea  of  this  kind  must  be  dan- 
gerous in  practice.  I  believe  that,  subject  to  the  rules  hereafter 
declared,  and  subject  to  the  exceptions  of  equitable  construc- 
tion, to  be  discussed  in  the  next  chapter,  the  tendency  of  all 
our  modern  decisions  is  to  the  effect,  that  the  intention  of  the 
Legislature  is  to  be  found  in  the  statute  itself,  and  that  there 
only  the  judges  are  to  look  for  the  mischiefs  meant  to  be  obvi- 
ated, and  the  remedy  meant  to  be  provided. 

In  a  case  on  the  embargo  laws,  the  Supreme  Court  of  the 
United   States    said,  "  In   construing  these   laws,  it  has  been  L 
truly  stated  to  be  the  duty  of  the  court  to  effect  the  intention  ! 
of  the  Legislature ;  but  this  intention  is  to  ])&  searched  for  in ' 

*  The  King  v.  Inhabitants  of  Hodnett,  1  T.  R.  96. 


206  LEGISLATIVE   INTENT,   HOW  ASCERTAINED. 

the  words  which  the  Legislature  has  employed  to  convey  it." 
And,  after  saying  that  the  object  was  to  lay  an  embargo,  and 
to  prevent  evasions  of  the  law,  and  that  certain  acts  had  been 
prohibited,  the  court  proceeded :  "  But  should  this  court  con- 
jecture that  some  other  act,  not  expressly  forbidden,  and  which 
is  in  itself  the  mere  exercise  of  power  over  property  which  all 
men  possess,  might  also  be  a  preliminary  step  to  a  violation 
of  the  law,  and  ought  therefore  to  be  punished  for  the  purpose 
of  effecting  the  legislative  intention,  it  would  certainly  trans- 
cend its  own  duties  and  powers,  and  would  create  a  rule 
instead  of  applying  one  already  made.  It  is  the  province  of 
the  Legislature  to  declare,  in  explicit  terms,  how  far  the  citizen 
shall  be  restrained  in  the  exercise  of  that  power  over  property 
which  ownership  gives ;  and  it  is  the  province  of  the  court  to 
apply  the  rule  to  the  case  thus  explicitly  described, — not  to 
some  other  case  which  judges  may  conjecture  to  be  equally 
dangerous."  * 

In  a  case  on  the  English  bankrupt  act,  Lord  Tenterden 
said,  "  The  intention  of  this  act  certainly  was  to  prevent 
voluntary  preferences ;  the  words  may,  probably,  go  beyond 
the  intention ;  but  if  they  do,  it  rests  with  the  Legislature  to 
make  an  alteration ;  the  duty  of  the  court  is  only  to  construe 
and  give  effect  to  the  provision."  f 

In  another  case  where  an  effort  was  made  to  inclu'de  a  writ 
of  pone  or  distringas  under  the  term  execution,  which  is  con- 
fined to  executions  on  judgments,  the  application  was  denied; 
and  Lord  Tenterden  said,  "  Speaking  for  myself  alone,  I  cannot 
forbear  observing,  that  I  think  there  is  always  danger  in  giving 
effect  to  what '  is  called  the  equity  of  a  statute,  and  that  it 
is  much  safer  and  better  to  rely  on  and  abide  by  the  plain 
words,  although  the  Legislature  might  possibly  have  provided 
for  other  cases  had  their  attention  been  directed  to  them."  J 

Where  an  English  statute  provided,  that  no  indenture  of 
apprenticeship  should  be  "  valid  and  effectual "  unless  "  ap- 
proved of  by  two  justices  of  the  peace,  under  their  hands  and 
seals]"1  an  indenture  executed  by  the  justices  under  their  hands 

*  Schooner  Paulina' s  Cargo  v.  The  United          \  Brandling  v.  Barrington,    6    Barn.    & 
States,  7  Cranch,  52,  60.  Crea.  467,  475. 

f  Notley  v.  Buck,  8  Barn.  &  Cres.  160, 164. 


LEGISLATIVE   INTENT,   HOW   ASCERTAINED.  207 

only  was  held  void ;  and  the  King's  Bench,  per  Bay  ley,  J., 
said,  "  I  do  not  know  how  to  get  rid  of  the  words  of  this 
section  of  the  act  of  Parliament,  and  where  the  Legislature,  in 
a  very  modern  act  of  Parliament,  have  used  words  of  a  plain 
and  definite  import,  it  is  very  dangerous  to  put  upon  them 
a  construction,  the  effect  of  which  will  be  to  hold  that  the 
Legislature  did  not  mean  that  which  they  have  expressed."  * 

In  a  case  upon  the  English  poor  laws,  which  provided  that, 
in  order  to  gain  a  settlement,  the  rent  of  a  tenement  "  should 
be  paid  for  one  whole  year  at  least,"  it  was  insisted,  with 
reference  to  the  great  inequality  of  rents,  that  this  was  very 
absurd  and  unjust ;  but  the  act  was  strictly  construed,  and  the 
King's  Bench  said,  "  It  is  very  desirable  in  all  cases  to  adhere 
to  the  words  of  an  act  of  Parliament,  giving  to  them  that 
sense  which  is  their  natural  import  in  the  order  in  which  they 
are  placed."  f 

"  We  are  bound,"  said  Lord  Denman,  "  to  give  to  the  words 
of  the  Legislature  all  possible  meaning  which  is  consistent 
with  the  clear  language  used.  But,  if  we  find  language  used 
which  is  incapable  of  a  meaning,  we  cannot  supply  one.  It  is 
extremely  probable  that  the  alteration  suggested  would  express 
what  the  Legislature  meant,  but  we,  looking  at  the  word  as 
judges,  are  no  more  justified  to  introduce  that  meaning  than 
we  should  be  if  we  added  any  other  provision."  £ 

"  The  court,"  said  Coleridge,  J.,  "  should  decline  to  mould 
the  language  of  an  act  for  the  sake  of  an  alleged  convenience, 
or  an  alleged  equity,  upon  doubtful  evidence  of  intention."  || 
And  again,  the  same  learned  and  experienced  judge  said — "If  I 
thought  the  construction  we  are  adopting,  put  any  force  on  the 
meaning  of  the  act,  I  should  be  the  last  to  jeoncur  in  it ;  for 
the  longer  I  sit  here  the  more  I  feel  the  importance  of  seeking 
only  the  meaning  of  a  statute  according  to  a  fair  interpretation 
of  its  words,  and  resting  upon  that."  ^f  Says  Patteson,  J., — 
"  I  see  the  necessity  of  not  importing  into  statutes  words  which 
are  not  be  found  there.  Such  a  mode  of  interpretation  only 

*  The  King  v.  Inhabs.  of  Stoke  Damerel,          i  Green  v.  Wood,  7  Q.  B.  178,  185. 
7  Barn.  <fe  Cres.  568,  568,  569.  |  The  King  v.  Poor  Law  Commissioners, 

f  King  v.  Inhabs.  of  Ramsgate,  6  Barn.  6  A.  &  E.  1,  7. 
<fc  Cres.  712,  715.     See  also  King  v.  Inhabs.          ^  6  A.  &  E.  p.  7. 
of  Barham,  8  Barn.  &  Cres.  99. 


208  LEGISLATIVE  INTENT,   HOW  ASCERTAINED. 

gives  occasion  to  endless  difficulty."  *  "  We  are  required,"" 
savs  Lord  Denman,  "to  add  some  arbitrary  words  to  the 

«/  w 

section.  We  cannot  introduce  any  such  qualification ;  and  I 
cannot  help  thinking  that  the  introduction  of  qualifying  words 
in  the  interpretation  of  statutes,  is  frequently  a  great  reproach 
to  the  law."  f  Tindal,  C.  J.,  says, — "  It  is  the  duty  of  all 
courts  to  confine  themselves  to  the  words  of  the  Legislature — 
nothing  adding  thereto,  nothing  diminishing."  $ 

The  Court  of  Appeals  in  New  York  says,  "  Whether  we 
are  considering  an  agreement  between  parties,  a  statute,  or  a 
Constitution,  with  a  view  to  its  interpretation,  the  thing  we  are 
to  seek  is,  the  thought  which  it  expresses.  To  ascertain  this,  the 
first  resort  in  all  cases  is  to  the  natural  signification  of  the 

O 

words  employed,  in  the  order  and  grammatical  arrangement  in 
which  the  framers  of  the  instrument  have  placed  them.  If 
thus  regarded  the  words  embody  a  definite  meaning,  wrhich 
involves  no  absurdity,  and  no  contradiction  between  different 
parts  of  the  same  writing,  then  that  meaning  apparent  on  the 
face  of  the*  instrument  is  the  one  which  alone  we  are  at  liberty 
to  say  was  intended  to  be  conveyed.  In  such  a  case  there  is 
no  room  for  construction.  That  which  the  words  declare,  is 
the  meaning  of  the  instrument ;  and  neither  courts  nor  Legis- 
latures have  the  right  to  add  to  or  take  away  from  that 
meaning."  I 

In  Michigan  it  has  been  said,  "  It  is  only  where  a  statute  is 
ambiguous  in  its  terms,  that  courts  exercise  the  power  of  so 
controlling  its  language  as  to  give  effect  to  what  they  may  sup- 
pose to  have  been  the  intention  of  the  law-maker.  In  the  stat- 
ute before  us,  the  language  admits  of  but  one  construction. 
No  doubt  can  arise  as  to  its  meaning.  It  must,  therefore,  be 
its  own  interpreter."  ^f 

/"The  result  of  this  investigation  then  is,  that  for  the  purpose 
of  ascertaining  the  intention  of  the  Legislature,  no  extrinsic 
fact,  prior  to  the  passage  of  the  bill,  which  is  not  itself  a  rule 
of  law  or  an  act  of  legislation,  can  be  inquired  into  or  in  any 

*  King  v.  Burrell,  12  A.  &  E.  468.  the   subject   also  discussed  in  McCluskey  v. 

f  Lamond  v.  Eiffe,  3  Q.  B.  910.  Cromwell,  1  Kernan,  593. 

Everett  v.  Wells,  2  Scott  N.  C.  531.  1  Bidwell  et  al.  v.  Whitaker  et  al.  1  Mich. 

Newell  v.  The  People  3  Seld.  97.     See  469,  479. 


STATUTES   IN  PARI   MATERIA.  209 

way  taken  into  view.  We  now  proceed  with  the  inquiry,  wliat 
are  the  means  outside  of  the  statute  which  we  may  legitimately 
employ  to  arrive  at  the  desired  result,  viz.,  the  legislative 
intent. 

Statutes  in  pari  materia,  to  be  taken  together. — It  is  well 
settled,  that  in  construing  a  doubtful  statute,  and  for  the  pur- 
pose of  arriving  at  the  legislative  intent,  all  acts  on  the  same 
subject-matter  are  to  be  taken  together  and  exarnin  eel,  in  order 
to  arrive  at  the  true  result,  (cf)  "  All  acts  in  pari  material 

(a)  In  pari  materia. — It  will  be  presumed,  where  the  sense  is  doubtful,  that  the- 
Legislature  did  not  intend  to  change  the  general  principles  of  law  ;  thus  a  statute 
allowing  wills  probated  in  another  State  to  be  recorded  in  Ohio,  was  held  not  to  in- 
clude a  will  probated  in  another  State  which  ought  to  have  been  originally  probated 
in  Ohio,  where  the  testator  was  domiciled.  Manuel  v.  Manuel,  13  Ohio,  N.  S.  458, 
Acts  in  pari  materia  are  to  be  taken  as  one  law  where  they  do  not  conflict;  e.  g.^ 
statutes  of  limitation  passed  successively.  If  the  earlier  is  not  inconsistent,  it  is  not 
repealed,  and  the  time  runs  under  that  as  well  as  under  the  later  statute.  McLaugh- 
lin  v.  Hoover,  1  Oregon,  31.  A  statute  changing  county  lines  was  construed  in  con- 
nection with  a  prior  act  as  to  collection  of  taxes,  both  forming  parts  of  one  system. 
Eskridge  v.  McGruder,  45  Miss.  294. 

Even  repealed  statutes  are  to  be  considered.  Doe  v.  Avaline,  8  Ind.  6 ;  Coffin  v. 
Kich,  45  Me.  507 ;  and  a  repealed  proviso  in  construing  the  portion  not  repealed. 
Bank  for  Savings  v.  Collector,  3  Wall.  495.  An  amendatory  act,  and  the  act 
amended,  are  to  be  construed  as  one  statute,  and  no  portion  of  either  is  to  be  held 
inoperative,  if  it  can  be  sustained  without  wresting  words  from  their  appropriate 
meaning.  Harrell  v.  Harrell,  8  Flor.  46.  In  the  same  manner,  constitutional  pro- 
visions and  statutes  in  pari  materia  are  to  be  construed  together,  e.  g.,  those  as  to 
duty  of  comptroller  with  regard  to  taxes.  Billingsley  v.  State,  14  Md.  369.  Stat- 
utes passed  the  same  day  on  the  same  subject  are  to  be  construed  as  sections  of  one 
statute.  St.  Martin  v.  New  Orleans,  14  La.  Ann.  113;  People  v.  Jackson,  30  Cal. 
427.  Statutes  passed  at  the  same  session  on  the  same  subject  are  to  be  construed  as 
one  act ;  hence  a  criminal  code  repealing  all  other  laws  as  to  crimes,  does  not  repeal 
a  license  law,  with  penalties,  etc.,  passed  at  the  same  session,  the  code  containing  no 
provisions  touching  the  subject  of  license.  Cain  v.  State,  20  Tex.  355.  The  various 
statutes  of  N.  Y.  giving  new  powers  to  married  women,  though  passed  in  different 
years,  are  to  be  construed  as  one  act.  Perkins  v.  Perkins,  62  Barb.  531.  Where  dif- 
ferent degrees  of  murder  were  created,  and  it  was  provided  that  "  the  degree  of 
murder  shall  be  found  by  the  jury,"  it  was  held  by  the  aid  of  other  sections  in  pari 
materia,  that  this  requirement  did  not  apply  in  a  case  where  the  accused  plead 
guilty.  Green  v.  Commonwealth,  12  Allen,  155.  A  statute  conferring  jurisdiction 
of  a  certain  offence  upon  a  police  court,  provided  that  the  fine  imposed  should  not 
exceed  $100,  and  the  imprisonment  should  not  exceed  one  year ;  it  was  held,  by  re- 
ferring to  other  statutes  in  pari  materia,  that  this  provision  was  a  limit  upon  the 
punishment  of  either  fine  or  imprisonment,  but  did  not  authorize  the  infliction  of 
both  for  the  same  offence.  Commonwealth  v.  Griffin,  105  Mass.  185.  A  subsequent 
statute  may  be  consulted  as  to  the  meaning  of  a  prior  one,  even  in  respect  to  its 
14 


210  STATUTES   IN  PARI   MATERIA. 

said  Lord  Mansfield,*  "  are  to  be  taken  together,  as  if  they 
were  one  law."  "  Where,"  he  said,  on  another  occasion,  "  there 
are  different  statutes  in  pari  materia,  though  made  at  different 
times,  or  even  expired,  and  not  referring  to  each  other,  they 
shall  be  taken  and  construed  together  as  one  system,  and  as 
explanatory  of  each  other."  And  in  vario'us  cases  before  him, 
Lord  Mansfield  applied  this  doctrine  to  the  laws  concerning 
church  leases,  bankrupts,  and  the  poor.f 

This  sound  rule  has  been  frequently  recognized  in  this 
country.  On  this  principle,  "in  many  instances,"  say  the  Court 
of  Errors  of  the  State  of  New  York,  "  a  remedy  provided  by 
one  statute  will  be  extended  to  cases  arising  on  the  same  mat- 
ter under  a  subsequent  statute."  J  And  so  it  was  held,  that  a 
provision  for  compensation  embraced  in  an  original  act  of  1817, 
extended  to  cases  arising  under  an  act  passed  in  1820,  confer- 
ring additional  powers  on  canal  commissioners. 

The  subject  has  been  considered  and  explained  in  Connecti- 
cut ;  and  it  was  there  said,  "  Statutes  are  in  pari  materia, 
which  relate  to  the  same  person  or  thing,  or  to  the  same  class 
of  persons  or  things.  The  word  par  must  not  be  confounded 
with  the  word  similis.  It  is  used  in  opposition  to  it,  as  in  the 
expression,  magis  pares  sunt  quam  similes  ;  intimating  not  like- 

*  The  Earl  of  Ailesbury  v.  Pattison,  Doug.  f  Rex  v.  Loxdale,  1  Burr.  445  ;  Duck  v. 

30.  Addington,  4  Term  R.  447. 

.  \  Rogers  v.  Bradsliaw,  20  J.  R.  735,  744. 

application  to  transactions  occurring  between  the  dates  of  the  two.  Hart  v.  Rey- 
nolds, 1  Heisk.  (Tenn.)  208 ;  McAfee  v.  Southern  R.  R.  36  Miss.  669. 

The  rule  in  pari  materia  does  not,  however,  go  to  the  extent  of  controlling  the 
language  of  a  statute  by  the  supposed  policy  of  previous  enactments.  Goodrich  v. 
Russell,  42  N.  Y.  177  ;  nor  can  other  statutes  in  pari  materia  be  resorted  to  -where 
the  language  of  the  one  under  consideration  is  plain  and  explicit.  Ingalls  v.  Cole, 
47  Me  530.  Separate  charters  were  granted  to  two  companies  to  erect  booms  and 
to  raft  logs  caught  by  such  booms ;  afterwards  the  companies  were  consolidated ; 
held  that  the  charters  must  be  construed  separately,  and  that  the  powers  conferred 
on  each  were  not  interchanged.  Gould  v.  Langdon,  43  Penn.  St.  365. 

For  further  illustrations  of  the  rule,  see  Powers  v.  Shepard,  48  N.  Y.  540  (boun- 
ties) ;  Billingslea  v.  Baldwin,  23  Md.  85  (sales  of  infants'  estates) ;  Keeling's  Road, 
69  Penn.  St.  358  ;  Converse  v.  U.  S.  21  How.  463;  United  States  v.  Collier,  3  Blatch. 
C.  C.  325  (appropriation  and  revenue  acts);  Mitchell  v.  Duncan,  7  Flor.  13  (stay  of 
execution);  La  Grange  County  v.  Cutler,  6  Ind.  354;  State  v.  Shaw,  28  Iowa,  67; 
Le  Roy  v.  Chabolla,  2  Abb.  U.  S,  R.  448. 


STATUTES   IN  PARI  MATERIA.  211 

ness  merely,  but  identity.  It  is  a  phrase  applicable  to  public 
.statutes  or  general  laws,  made  at  different  times  and  in  refer- 
ence to  the  same  subject.  Thus,  the  English  laws  concerning 
paupers,  and  their  bankrupt  acts,  are  construed  together,  as  if 
they  were  one  statute,  and  as  forming  a  united  system ;  other- 
wise the  system  might,  and  probably  would,  be  inharmonious 
and  inconsistent.  Such  laws  are  in  pari  materia.  But  private 
acts  of  the  Legislature,  conferring  distinct  rights  on  different 
individuals,  which  never  can  be  considered  as  being  one  stat- 
ute, or  the  parts  of  a  general  system,  are  not  to  be  interpreted 
by  a  mutual  reference  to  each  other.  As  well  might  a  contract 
between  two  persons  be  construed  by  the  terms  of  another 
contract  between  different  persons."  And  so,  the  charters  of 
various  different  banks  were  held  not  to  be  \npari  materia* 

So,  in  New  York  it  has  been  recently  decided,  where  an  act 
passed  in  18 IT  for  the  construction  of  the  Erie  Canal,  vested 
the  fee  of  the  lands  taken  for  the  purpose  in  the  people  of  the 
State,  and  lands  were  taken  for  the  construction  of  the  canal, 
under  an  act  passed  in  1819  omitting  any  provision  as  to  the 
title,  that  the  people  took  the  same  interest  under  the  act  of 
1817  as  they  did  under  that  of  1819.f 

So  in  Kentucky  it  has  been  said,  that  where  two  statutes  of 
the  same  date  relate  to  the  same  thing,  but  one  is  more  com- 
prehensive than  the  other,  there  will  be  an  effort  to  give  to  one 
some  operation  not  embraced  in  the  other,  so  that  each  may,  if 
possible,  have  some  effect, — that  the  legislation  may  not  appear 
to  have  been  vain  and  useless.  And  in  that  State,  where  by 
statute  all  lands  held  by  a  seminary  are  declared  free  from  all 
taxation  whatever,  and  by  another  statute  of  the  same  date  it 
is  declared,  that  the  land  on  which  any  seminary  is  erected,  to 
the  extent  oifive  acres,  held  severally  or  individually,  is  exempt 
from  taxation,  it  was  held  to  give  effect  to  both  statutes,  that 
lands  on  which  a  seminary  is  erected,  owned  by  the  seminary, 
though  exceeding  five  acres,  should  be  exompt,  but  if  not  owned 
by  the  seminary,  only  five  acres  should  be  exempt.  J 

*  Hosmer,  J.  United  Soc.  v.  Eagle  Bank,  14  B.  Monroe,  266 ;  Acts  in  pari  materia  to 

7  Conn.  457,  469,  470.  be   taken  together,  Cannon   v.  Vau°-han.  12 

f  Reiford  v.  Knight,  15  Barb.  627.  Texas,  399,402, 
\  Naz.  Lit.  &  Ben.  Inst,  v.  Commonwealth, 


212  CONTEMPORANEOUS  EXPOSITION. 

So  it  has  been  said  that  all  the  acts  of  Congress  relating  to 
the  reservation,  grant,  and  sale  of  the  sixteenth  section  in  the 
several  Congressional  townships  in  the  different  States  of  the 
Union,  for  the  use  of  schools,  being  in  relation  to  the  same  sub- 
ject-matter, are  to  be  taken  in  pari  materiel  and  considered  as 
one  act,  in  ascertaining  the  purpose  of  the  grant  of  the  sixteenth 
section  of  the  several  townships  in  any  one  State.*  So,  in  In- 
diana, where  at  the  same  session  an  act  was  passed  fixing  the 
salaries  of  an  auditor  of  a  particular  county,  and  also  another 
fixing  the  salaries  of  auditors  generally,  the  Supreme  Court  said 
that  the  rule  of  construction  was  well  settled,  viz.,  to  regard 

77  O 

these  enactments  in  pari  materia,  to  consider  them  as  one  stat- 
ute, and  give  them  such  an  exposition  as  will  sustain  what  ap- 
pears to  have  been  the  main  intent  of  the  law  makers,  f 

The  rule  that  statutes  in  pari  materia  are  to  be  consulted 
for  the  construction  of  each  other,  holds  good,  though  some  of 
the  statutes  may  have  expired,  or  even  been  repealed,  and 
whether  they  are  referred  to  or  not.  "  All  acts  which  relate  to 
the  same  subject,"  said  Lord  Mansfield,  J  "  notwithstanding 
some  of  them  may  be  expired,  or  are  not  referred  to,  must  be 
taken  to  be  one  system,  and  construed  consistently."!  "The 
objection  arising  from  the  repeal  of  the  former  statutes,"  says 
Lord  Denman,  "  is  not  insisted  on,^f  and  does  not  seem  tenable." 
"  This  act  of  Parliament,"  says  Parke,  J.,**  "  repeals  that  of  32 
Georg  III,  and  41  George  III,  the  provisions  of  which  are  only 
so  far  material  as  they  may  aid  in  the  construction  of  the  enact- 
ments of  the  existing  statute."  (a) 

S  Contemporaneous  Exposition. — In  seeking  aid  to  construe 
an  obscure  or  doubtful  statute,  considerable  weight  is  attached 

*  The   State    of   Indiana    v.    Springfield  \  Rex  v.  Loxdale  et  al.  1  Burr.  447. 

Township,  6  Indiana,  83.  ||  See,  also,  Reg.  v.  Merionethshire,  6  Q.  B. 

f  Board   of  Corns,   v.   Cutler,  6  Indiana,     R.  343. 

354.     See,  also,  M'Cartee  v.  Orphan  Asylum  If  Reg.  v.  Stock,  8  Ad.  &  Ell.  405,410. 

Society,  9  Cowen,  437;  Dodge  v.  Gridley,  10  **  Bussey  v.  Story,  4  B.  &  A.  98,  108. 
Ohio,  173;  M'Mahon  v.  Cincinnati  <fe  Chicago 
Short  Line  Railroad  Co.  5  Ind.  413. 

(a)  Where  a  statute  differs  in  its  language  from  a  prior  statute  on  the  same  sub- 
ject, it  is  an  intimation  that  a  different  construction  is  intended.  Rich  v.  Keyser, 
54  Penn.  St.  86  ;  but  not  where  the  change  is  one  of  phraseology  merely.  Burwell 
T.  Tullis,  12  Minn.  572. 


CONTEMPORANEOUS   EXPOSITION.  213 

to  the  opinions  in  regard  to  it  entertained  by  persons  learned  in 
the  law,  at  the  time  of  its  passage.  "  Great  regard,"  says  Lord 
Coke,  "  ought,  in  construing  a  statute,  to  be  paid  to  the  con- 
struction which  the  sao-es  of  the  law,  who  lived  about  the  time 

O  f 

or  soon  after  it  was  made,  put  upon  it,  because  they  were  best 
able  to  judge  of  the  hitention  of  the  makers  at  the  time  when 
the  law  was  made."  And  this,  in  the  terse  and  admirable  lan- 
guage of  the  civil  law,  is  expressed  by  the  maxim,  Contempo- 
ranea  expositio  est  fortissimo,  in  lege*  As  we  shall  see  here- 
after, this  same  principle  has  been  applied  in  this  country  to  a 
certain  extent  in  the  construction  of  Constitutions. 

So,  in  regard  to  the  judges  of  the  Supreme  Court  of  the 
United  States  sitting  as  circuit  judges  without  distinct  commis- 
sions for  the  purpose,  it  was  held  by  the  Supreme  Court,  .that 
a  practice  and  acquiescence  under  the  system  for  a  period  of 
several  years,  commencing  with  the  organization  of  the  judicial 
system,  afforded  an  irresistible  answer  to  all  objections,  and 
had,  indeed,  fixed  the  construction.  It  was  said  to  be  a  con- 
temporary interpretation  of  the  highest  nature,  f 

So,  as  to  the  laws  of  the  Colony  of  Massachusetts  in  regard 
to  common  lands,  the  Supreme  Court  of  that  State  has  said,— 

Of  these  statutes  a  practical  construction  early  and  generally  obtained,  that 
in  the  power  to  dispose  of  lands  was  included  a  power  to  sell  and  convey  the 
common  lands.  Large  and  valuable  estates  are  held  in  various  parts  of  the 
commonwealth,  the  titles  to  which  depend  on  this  construction.  Were  the 
court  now  to  decide  that  this  construction  is  not  to  be  supported,  very  great  mis- 
chief would  follow.  And  although  if  it  were  now  res  integra,  it  might  be  very 
difficult  to  maintain  such  a  construction,  yet  at  this  day  the  argumentum  ab  in- 
convenienti  applies  with  great  weight.  We  cannot  shake  a  principle  which  in 
practice  has  so  long  and  so  extensively  prevailed.  If  the  practice  originated  in 
error,  yet  the  error  is  now  so  common  that  it  must  have  the  force  of  law.  The 
legal  ground  on  which  this  provision  is  now  supported  is,  that  long  and  con- 
tinued usage  furnishes  a  contemporaneous  construction  which  must  prevail 
over  the  mere  technical  import  of  words.  J 

So  in  regard  to  the  construction  of  the  statute  of  frauds,  the 
same  court  has  said, — 

A  contemporaneous  is  generally  the  best  construction  of  a  statute.  It  gives 
the  sense  of  a  community,  of  the  terms  made  use  of  by  a  Legislature.  If  there 

*  Dwarris,  p.  562 ;  Philadelphia,  <fcc.  R.  f  Stuart  v.  Laird,  1  Cranch,  299. 

R.  v.  Catawissa  R.  R.  53  Penn.  St.  20,  61.     '  \  Rogers  v.  Goodwin,  2  Mass.  477,  478. 


214  JUDICIAL   CONSTRUCTION. 

is  ambiguity  in  the  language,  the  understanding  and  application  of  it  when  the 
statute  first  comes  into  operation,  sanctioned  by  long  acquiescence  on  the  part 
of  the  Legislature  and  judicial  tribunals,  is  the  strongest  evidence  that  it  has 
been  rightly  explained  in  practice.  A  construction  under  such  circumstances 
becomes  established  law  ;  and  after  it  has  been  acted  upon  for  a  century,  noth- 
ing but  legislative  power  can  constitutionally  effect  a  change.  * 

Legislative  Exposition. — The  exposition  of  statutes  by  sub- 
sequent legislative  bodies,  has  weight — though  not  a  control- 
ing  authority,  in  regard  to  the  construction  of  statutes.f  And 
in  Vermont,  it  has  been  said  that  the  history  of  the  legislation 
in  the  State,  in  reference  to  the  subject-matter  of  a  statute, 
may  be  referred  to,  as  tending  to  aid  in  the  construction  to  be 
given  to  it.J  A  declaratory  act,  or  an  act  declaring  the  true 
intent  of  a  previous  act,  does  not  control  the  judiciary  in  decid- 
ing on  the  true  construction  of  the  first  act,  except  in  cases 
arising  subsequent  to  the  declaratory  act,  or  except  in  cases 
where  a  retrospective  act  can  properly  be  passed.  In  a  case  of 
this  kind  it  has  been  said,  "  The  preamble  of  the  act  declares 
its  object  to  be  the  removal  of  doubts  upon  a  point  of  law.  So 
far  as  the  future  was  concerned,  this  was  strictly  within  the 
constitutional  attributes  of  the  Legislature, — it  being  the  pre- 
rogative and  peculiar  duty  of  that  branch  of  the  Government 
to  make  the  law;  and  consequently,  its  dictates,  when  duly 
promulgated,  fix  the  law  from  the  moment  of  such  promulga- 
tion, so  far  as  they  do  not  interfere  with  vested  rights,  or  im- 
pair the  obligation  of  contracts  previously  made.  But  the 
power  of  expounding  the  law,  which  includes  the  great  and  re- 
sponsible duty  of  deciding  whether  the  legislative  assemblies, 
State  and  municipal,  have  transcended  in  their  past  action  the 
limits  of  their  powers,  as  defined  by  the  Constitution  and  the 
laws, — this  belongs  to  the  judiciary  alone."  ||  < 

Judicial  Construction. — Stare  decisis  is  the  motto  of  courts 

of  justice,  sometimes,  it  is  true,  departed  from, — for  it  is  claimed 

i  for  our  law  as  one  of  its  merits,  that  it  silently  changes  with 

*  Packard  v.  Richardson,  17  Mass.  121,  iana  Annual  Rep.  p.  747.  It  is  the  dissenting 

143.  opinion  of  Buchanan,  J.,  but,  I  suppose,  with 

f  Coutant  v.  The  People,  11  Wend.  511 ;  the  modification  in  the  text  expresses  the  true 

Rex  v.  Loxdale,  1  Burr.  447.  idea.  The  law  in  this  case  was  retrospective, 

t  Henry  v.  Tilson,  17  Verm.  479.  and  sustained  as  such  by  the  court. 

}  Municipality  No.  1  v.  Wheeler,  10  Louis- 


USAGE.  215 

the  changes  in  the  habits  and  affairs  of  men  ;*  but,  as  a  general 
rule,  and  particularly  in  regard  to  the  construction  of  statutes, 
courts  adhere  strictly  to  the  decisions  of  their  predecessors. 
"  Thirty-four  years  have  nearly  passed,"  said  Lord  Kenyon,  in 
construing  a  penal  statute  for  the  observance  of  the  Lord's  Day, 
"  since  the  decision  of  the  case  of  Rex  v.  Cox,  which  informed 
the  public  that  all  bakers  have  a  right  to  do  what  is  imputed 
to  this  defendant  as  an  offence.  This  circumstance  alone  ousrht 

O 

to  have  some  weight  in  the  determination  of  this  case ;"  and 
•  the  word  being  doubtful,  the  original  decision  was  adhered  to.f 
Says  Lord  Mansfield — "When  solemn  determinations,  acqui- 
esced under,  have  settled  precise  cases  and  a  rule  of  property, 
they  ought,  for  the  sake  of  certainty,  to  be  observed,  as  if  they 
had  originally  formed  a  part  of  the  text  of  the  statute  ;"J  and 
this  doctrine  has  been  repeatedly  recognized.  |  "  Whatever 
might  be  our  impressions  were  the  matter  res  integra"  says  the 
Supreme  Court  of  Louisiana,  "  we  deem  it  important  in  the 
construction  of  statutes,  to  adhere  to  what  has  been  already 
adjudged.  The  judicial  interpretation  becomes,  as  it  were,  a 
part  of  the  statute,  and  should  not  be  changed  but  for  the  most 
cogent  reasons.''^]" 

Usage. — Of  a  similar  value  in  regard  to  the  construction  of 
statutes  is  usage,  or  the  construction  which  custom  or  practice 
has  put  on  them.  "  Optima  legum  interpret  consuetudo**  The 
wisdom  of  this  principle  is  asserted  in  the  civil  law  :  Imperator 
Severus  rescripsit,  in  ambiguitatibus  quce  ex  legibus  proficis- 
cuntur,consuetudinem,  aut  rerum  perpetuo  similiter  judicatarum 
auctoritatem,  vim  legis  oUinere  debere.^\  "  It  is  the  common 
opinion,"  says  Lord  Coke,  "  and  communis  opinio  is  of  good 

*  "  Quicqitid  agunt  homines,  is  the  business  \  Wyndham  v.  Chetwynd,  1  Burrow,  419. 

of  courts,"  said  Lord  Mansfield,  in  Barwell  |  Nelson  v.  Allen  and  Harris,  1  Yerg.  376 ; 

v.  Brooks,  3  Doug.   371.  373;  "and  as  the  King  v.  Inhabitants  of  Corsham,  2  East,  302; 

il   usages  of  society  alter,  the  law  must  adapt  Hammond  v.  Anderson,  4  Bos.  and  P.   69; 

;|  itself  to  the  various  situations  of  mankind."  King  v.  Inhabitants  of  North  Nibley,  5  Term 

See  also  the  language  of  the  same  great  judge,  R.  2 1 . 

to  the  same  effect,  in  Corbett  v.  Poelnitz,  1  ^[  State  v.  Thompson,  10  La.  Ann.  R.  122, 

Term  R.  5,  9.     Lord  Kenyon,  however,  was  123.      [Wl.ere  a  statute  is  introduced  from 

of  the    opposite   way  of  thinking;    Ellah  v.  another   State,   its    established    construction 

Leigh,  5  Term  R.  682 ;  Clayton  v.  Adams,  6  there  is  introduced  with  it.     State  v.  Macon 

Term  R.  605  ;  and  see   Ram  on  Legal  Juclg-  Co.  Court,  41  Mo.  453. — EDITOR.] 

ment,  p.  32,  Philadelphia  Law  Library,  vol.  9.  **  2  Rep.  81. 

f  Rex  v.  Cox,  2  Burr.  787 ;  King  v.  John  ff  L.  38  ff.  de  Legibus. 
Younger,  5  Term.  R.  449,  450. 


216  USAGE. 

authoritie  in  law.     A   communi  observant ia   non   est   receden- 
dum?  * 

These  maxims  undoubtedly  owe  their  origin  to  the  period 
when  the  common  law,  that  creature  of  custom,  was  formed,— 
when,  in  the  absence  of  printing,  public  opinion  being  feeble 
and  insufficient,  and  government  divided  and  distracted,  the 
strong  practical  minds  of  the  times  saw  that  the  best,  perhaps 
the  only  mode  of  creating  order  and  system  was,  to  give  all 
possible  force  and  effect  to  usage,  to  legalize  and  establish 
general  habits  and  practices,  and  thus  to  turn  custom  into  • 
law.  (a) 

In  a  case  of  the  House  of  Lords,  on  the  statute  27  Henry 
VIII,  Lord  Hardwicke  said,  "  The  opinion  of  conveyancers  in 
nil  times,  and  their  constant  course,  is  of  great  weight.  They 
.are  to  advise ;  and,  if  their  opinion  is  not  to  prevail,  must 
every  case  come  to  law  ?  No ;  the  received  opinion  ought  to 
govern."  And  Lord  Mansfield  said,  "  Consider  also  the  usages 
and  transactions  of  mankind  upon  the  statute.  The  object  of 
all  laws  with  regard  to  real  property  is  quiet  and  repose.  As 
to  practice  there  has  almost  been  only  one  opinion.  The 
greatest  conveyancers,  the  whole  profession  of  the  law,  Sir 
Orlando  Bridgeman,  Lord  Nottingham,  there  was  not  a  doubt 
at  the  bar  in  Harvey  v.  Ashley — Mr.  Fazakerley  always  took 
it  for  granted."  f 

*  Coke  on  Litt.  186,  a,  note ;  see  Har-  The  understanding  of  the  bar  generally, 

grave's  note  69,  where  it  is  said  that  this  is  and  especially  the  usual  practice  of  the  con- 

the  origin  of  the  maxim,  Commwiis  error  veyancers,  have  always  had  great  weight  in 

Jacitjus.  England,  and  cases — some  even  on  the  con- 

f  Earl  of  Buckinghamshire  v.  Prury,  2  struction  of  statutes — have  frequently  been 

Eden  Ch.  R.  61,  64  and  74.  See  as  to  usage  decided  on  the  mere  weight  of  their  authority, 

in  the  matter  of  the  appointment  of  overseers  See  Smith  v.  The  Earl  of  Jersey,  2  Brod.  & 

of  the  poor,  Rex  v.  Loxdale,  1  Burrows,  445 ;  B.  598,  where  Lords  Eldon  and  Redesdale 

where  Lord  Mansfield  directed  inquiry  to  be  bear  strong  testimony  on  this  point ;  and  see, 

made  into  the  usage  of  certain  parishes  in  also,  on  this  subject  general!}',  The  Science 

this  respect.  of  Legal  Judgment  ;  a  treatise  designed  to 

(a)  Where  a  statute  is  applicable  only  to  a  particular  place,  doubtful  words  may 
be  construed  with  reference  to  the  usage  of  that  place,  as  general  statutes  may  be 
construed  with  reference  to  general  usage.  Love  v.  Hinckley,  1  Abb.  Adm.  R  436. 
But  where  a  statute  is  sufficient  in  itself,  and  is  silent  as  to  any  existing  custom,  it 
overrides  such  custom,  and  evidence  that  the  Legislature  knew  of  such  custom  with 
a  view  to  show  they  intended  to  sanction  it,  is  inadmissible.  Delaplane  v.  Crenshaw, 
15  Gratt,  457.  Usage  cannot  be  called  in  except  in  case  of  doubtful  construction. 
Bailey  v.  Rolfe,  16  K  H.  247. 


USAGE.  217 

So  in  the  Supreme  Court  of  the  United  States,  the  practical 
•construction  given  to  an  act  of  Congress,  was  held  to  be  of 
great  weight  in  assisting  the  court  to  arrive  at  its  true  con- 
struction.* 

In  New  York,  where  at  tax  sales  the  comptroller  was 
directed  to  execute  conveyances  in  the  name  of  the  people  of 
the  State,  and,  disregarding  the  statutes,  deeds  were  given 
by  the  comptroller  in  his  name  of  office;  it  was  held  that  these 
deeds  were  good  to  pass  a  legal  title,  on  the  ground  of  a  long 
and  uniform  custom  to  give  deeds  of  this  kind  in  this  way.f 
The  Chancellor  said,  "  Lord  Coke's  expression,  that  common 
opinion  is  good  authority  in  law,  does  not  apply  to  a  mere 
speculative  opinion  in  the  community,  as  to  what  the  law  on  a 
particular  subject  is;  but  when  such  opinion  has  been  fre- 
quently acted  upon,  and  for  a  great  length  of  time,  by  those 
whose  duty  it  is  to  administer  the  law,  and  important  in- 
dividual rights  have  been  acquired,  or  are  dependent  upon  such 
practical  construction  of  the  law,  this  expression  of  the  learned 
Commentator  upon  Littleton  is  entitled  to  great  weight." 

But  though  usage  may  be  employed  to  construe  statutes, 
it  cannot  be  permitted  to  defeat  the  general  intent  of  an  act. 
So  said  Lord  Mansfield :  "  The  use  of  this  practice  will  avail 
nothing  if  meant  as  an  evasion  of  the  statute;  for  usage 
certainly  will  not  protect  usury."  J  So  again,  a  particular 
usage  cannot  be  admitted  to  interpret  a  general  act,  as  one 
relating  to  the  English  poor  rates.  |  So,  too,  in  England,  the 
acts  of  Parliament  fixing  one  standard  of  weights  and  measures 
have  been  steadily  upheld  against  all  local  customs  and  usages.^]" 
So,  in  this  country,  a  contract  for  the  sale  of  lands  by  the  acre, 
means  the  statute  acre;  and  parol  evidence  of  a  general  under- 
standing to  the  contrary  is  inadmissible.**  In  Pennsylvania, 

show  the  materials  whereof,  and  the  process          f  Bank  of  Utica  v.  Mersereau,  3  Barb.  C. 

by   which   the   Courts  of  Westminster   Hall  530,  577. 

construct  their  judgments,   by  James  Ram,  \  Floyer  v.  Edwards,  Cowper,  112. 

of  the  Inner  Temple;  an  able  and  instructive  |  The  Kirqf  v.  John  Hogg,  1  T.  R.  721. 

work.     It   was  re-published   in  1835,  in  the  •[[  Noble  v.  Durell,  3  T.  R.  271;  Master, 

9th   vol.  of  the  Philadelphia  Law  Library.  Ac.  of  St.  Cross  v.  Lord  Howard  De  Walden, 

[A  new   edition,  annotated   by   John   Town-  6  T.  R.  338. 

shend,  Esq.,  was  published  in  1872.]  **  Paull  v.  Lewis,  4  Watts,  402. 

*  U.  S.  Bank  v.  Halstead,  10  Wheat,  pp. 
61,  63. 


218  STRICT   AND   EQUITABLE   CONSTRUCTION. 

where  a  statute  directs  that  twenty  hundred  pounds  shall  make 
one  ton,  a  contract  was  made  to  delivery  forty  tons  of  pig 
metal ;  and  an  effort  was  made  to  show  that  the  usual  custom 
of  dealers  in  the  article  was  to  buy  and  sell  by  a  gross  ton  of 
two  thousand  two  hundred  and  sixty-eight  pounds ;  but  the 
court  held  that  the  statute  entered  into  the  contract,  and 
formed  an  essential  part  of  it :  "  It  is  a  statute  which  ought  to 
be  enforced ;  and  the  local  customs  up  the  Alleghany  river  are 
certainly  insufficient  to  repeal  it."  So  in  Maine,  it  has  been 
decided  that  no  prescriptive  right  can  be  claimed  against  an 
existing  statute,  f 

We  have  thus  enumerated  the  modes  by  which  the  true 
interpretation  of  doubtful  legislative  provisions  is  to  be  arrived 
at.  In  the  first  place,  if  the  act  be  strictly  a  remedial  one, 
a  clear  idea  is  to  be  had  of  the  law  as  it  existed  before  the 
statute,  and  of  the  mischief  which  it  was  meant  to  prevent, 
for  the  purpose  of  ascertaining  the  remedy  which  the  Legis- 
lature intended  to  give.  In  order  to  arrive  at  this  result,  the 
whole  statute  is  to  be  taken  together,  and  all  its  parts  are  to  be 
consulted;  acts  on  the  same  subject-matter  are  to  be  examined; 
contemporaneous  and  subsequent  legislative  exposition  may 
throw  some  light  upon  the  point ;  judicial  construction  may  be 
appealed  to ;  and  finally,  established  custom  will  perhaps 
determine  the  question.  If  the  law  relates  to  entirely  new 
matter,  as  for  instance  a  railroad  act,  the  .mind  must  be  steadily 
turned  in  the  same  direction,  and  its  efforts  employed  to  as- 
certain the  true  intent  of  the  Legislature.  But  in  no  other 
case  than  those  above  specified,  can  mere  extrinsic  facts  either 

\ ,  be   proved  or  in  any  way  taken  into  view :  the  intention  of 
the  Legislature  is  to  be  learned  from  the  language  they  have 

I      used.  J 

If,  after  all  these  legitimate  aids  are  called  in,  the  intention 
of  the  legislator,  as  happens  in  many  cases  of  hopeless  ambi- 
guity or  of  irreconcilable  contradiction,  is  still  involved  in 

*  Evans  v.  Myers,  25  Penn.  R.  114,  116.  construed  in  their  ordinary  import,  than  to 

f  Ham  v.  Sawyer,  38  Maine,  37.  enter   into   any   inquiry   as  to  the  supposed 

\  "  We   think  it  much  the  safer  course,"  intention  of  the  persons  who  framed  it."    The 

said  Lord  Tenterden,  in  a  case  on  the  Poor  King  v.  The  Inhabitants  of  Great  Bently,  10 

Laws,  "  to  adhere  to  the  words  of  the  statute  Barn.  &  Cres.  520,  526,  527. 


LANGUAGE   OF   STATUTES.  219 

doubt,  it  necessarily  results  that  the  task  of  arriving  at  the 
meanin^  of  the  act,  i.  &,  the  meaning  of  the  legislator,  is  an  idle 
effort ;  the  duty  of  the  judge  then  becomes  different,  and  he 
must  resolve  the  doubt  by  the  exercise  of  his  authority,  upon 
what  are  called  the  principles  of  strict  or  liberal  construction, 
and  which  Ave  have  to  consider  in  the  next  chapter.  The  office 
of  the  judge  then  necessarily  changes  its  character,  and  he  as- 
sumes to  a  certain  extent  the  duties  of  a  legislator.  He  ceases 
to  occupy  himself  with  an  endeavor  to  ascertain  the  legislative 
intention,  and  proceeds  to  decide  the  question  before  him,  aris- 
ing under  the  statute,  as  in  his  judgment  it  should,  as  a  matter 
of  right  and  reason,  be  determined.  Though  the  term  con- 
struction  may  be  still  applied  to  this  exercise  of  his  authority, 
it  is  evident  that  the  mental  operation  is  a  very  different  one 
from  the  endeavor  to  ascertain  the  intention  of  the,  law  maker. 
The  judge  practically  says,  this  statute  is  on  its  face  doubtful. 
I  cannot  tell  what  the  Legislature  intended ;  but  in  my  judg- 
ment they  ought  to  have  intended  this — the  statute  ought  to 
read  thus — and  so  I  decide.  This  is  really  legislation — a  sub- 
ordinate exercise  of  the  power,  but  still  legislation.  Of  the 
mode  of  exercising  this  power,  of  the  extent  to  which  it  can 
rightly  be  carried,  and  of  its  frequent  abuse,  we  shall  speak 
more  fully  in  the  next  chapter. 

In  the  mean  time,  however,  we  have  to  examine  the  rules 
which  govern  the  interpretation  of  particular  words,  or  as  it  i& 
called, — 

The  Language  of  a  Statute. — The  rules  which  we  have  been 
thus  far  considering,  relate  to  ambiguity  and  contradiction  in 
regard  to  the  general  scope  and  purport  of  a  statute ;  but  serious 
questions  may  arise  in  regard  to  single  words,  and  with  refer- 
ence to  the  precise  meaning  of  the  language  used.  The  rule  in 
regard  to  this  is  expressed  in  the  maxim,  a  verbis  legis  non  est 
recedendum — the  meaning  of  which  is,  that  statutes  are  to  be 
read  according  to  the  natural  and  obvious  import  of  their  lan- 
guage.* In  an  early  case,  the  judges  said,  "  They  ought  not  to 
make  any  construction  against  the  express  letter  of  the  statute, 
for  nothing  can  so  express  the  meaning  of  the  makers  of  an  act 

*  Forrest  v.  Forrest,  10  Barb.  S.  C.  R.  p.  46. 


220  LANGUAGE   OF   STATUTES. 

as  their  own  direct  words ;  for  index  animi  sermo"  *  The 
rule  is  well  expressed  by  Parke,  B.,  in  the  English  Exchequer. 
"  The  rule  which  the  courts  have  constantly  acted  on  of  late 
years,  in  construing  acts  of  Parliament,  or  other  instruments,  is 
to  take  the  words  in  their  ordinary  grammatical  sense,  unless 
such  a  construction  would  be  obviously  repugnant  to  the  inten- 
tion of  the  framers  of  the  instrument,  or  would  lead  to  some 
other  inconvenience  or  absurdity."  f  "  The  current  of  authority 
at  the  present  day,"  says  the  Supreme  Court  of  New  York,  "  is 
in  favor  of  reading  statutes  according  to  the  natural  and  most 
obvious  import  of  the  language,  without  resorting  to  subtle 
and  forced  constructions  for  the  purpose  of  either  limiting  or 
extending  their  operation.  Courts  cannot  correct  what  they 
may  deem  either  excesses  or  omissions  in  legislation,  nor  relieve 
against  the  occasionally  harsh  operation  of  statutory  provisions, 
without  the  danger  of  doing  vastly  more  mischief  than  good."  £ 
The  fundamental  reason  of  the  rules,  in  regard  to  the  lan- 
guage of  statutes,  which  we  have  thus  stated,  is  to  be  found  in 
the  consideration,  that  unless  the  courts,  as  a  general  thing, 
construe  language  in  the  same  sense  in  which  it  was  used  by 
the  Legislature,  that  is,  according  to  its  ordinary  and  natural 
import,  it  would  be  in  vain  to  attempt  to  preserve  any  harmony 
between  these  two  great  co-ordinate  branches  of  government ; 
and  the  contrary  doctrine  would  open  the  door  to  intolerable 
looseness  of  construction.  If  the  courts  could  give  to  phrases 
new,  unusual,  forced,  or  strained  interpretations ;  if  they  could 
insert  a  word  here  or  strike  out  a  word  there, — all  idea  of  con- 
forming to  the  legislative  intent  would  be  lost,  and  cases  turn- 
ing on  the  construction  of  doubtful  statutes  would  soon  come 
to  be  decided  either  on  judicial  notions  of  policy  or  on  the 
peculiar  equities  of  the  particular  matter  in  hand,  (a)  >* 

*  Edrich's  Case,  5  Co.  p.  118.  J  "Waller  v.  Harris,  per  Bronson,  J.,  20 

f  Jones  v.  Harrison,  6  Exch.  328,  333 ;  Wend.  555,  556,  557.  "  Words  are  to  be 
s.  c.  2  Lowndes,  M.  &  P.  257 — see  also,  Mac-  taken  in  the  natural  and  obvious  sense,  and 
dougall  v.  Paterson,  11  C.  B.  755.  not  in  a  sense  unnecessarily  restricted  or  en- 

fa)  The  familiar  rule  noscitur  a  sociis,  is  as  applicable  to  the  construction  of  stat- 
utes as  to  that  of  contracts.  See  State  v.  McGarry,  21  Wise.  496,  where  power  to 
remove  for  incompetency,  improper  conduct,  "  or  other  cause  satisfactory  to  the 
board,"  was  held  to  mean  other  "  kindred"  cause. 


TECHNICAL  WORDS.  221 

Technical  Words. — When  technical  words  occur  in  a  stat- 
ute, they  are  to  be  taken  in  a  technical  sense,  unless  it  appears 
that  they  were  intended  to  be  applied  differently  from  their 
ordinary  or  legal  acceptation.* 

So,  when  legislating  upon  subjects  relating  to  courts  and 
legal  process,  we  are  to  consider  the  Legislature  as  speaking 
technically,  unless  from  the  statute  itself  it  appears  that  they 
made  use  of  the  terms  in  a  more  popular  sense.  Thus,  where  a 
statute  directed  that  the  coroner  should  serve  process  where 
the  sheriff  was  "  a  party"  it  was  held  that  he  must  be  techni- 
cally a  party,  and  that  being  interested  in  the  suit  was  not 
sufficient,  f  So,  where  a  Massachusetts  statute  in  regard  to 
flowing  lands  declared  that  a  judgment  should  be  "fined"  it 
was  held  that  this  phrase  was  to  be  taken  in  its  technical 
sense. %  Where  a  Massachusetts  act  declared  that  no  license  to 
an  administrator  to  sell  the  real  estate  of  his  intestate  for  the 
payment  of  debts,  should  be  in  force  for  a  longer  time  than  one 
year,  it  was  said  "  that  though  the  popular  sense  may  be  the 
true  one  where  the  act  of  the  Legislature  does  not  relate  to  a 
technical  subject,  yet  it  being  the  object  to  limit  the  time  of 
sales  and  prevent  estates  from  being  kept  open  longer  than  is 
necessary,  the  legal  sense  seems  the  proper  one ;"  "  and  it  was 
held  that,  there  being  in  a  legal  sense  no  sale  till  the  deed  was 
delivered,  the  deed  must  be  delivered  within  the  year."  | 

In  regard  to  the  word  "  robbery,"  used  in  an  act  of  the 
United  States,  Mr.  Justice  Washington  has  said,  "  If  a  statute 
of  the  United  States  uses  a  technical  term  which  is  known,  and 
its  meaning  fully  ascertained  by  the  common  or  civil  law,  from 
one  or  the  other  of  which  it  is  obviously  borrowed,  no  doubt 
can  exist  that  it  is  necessary  to  refer  to  the  source  whence  it  is 
taken  for  its  precise  meaning."  ^[  Where  the  word  "  supersede" 
was  used  in  a  militia  act,  the  Supreme  Court  of  Massachusetts 
said,  "  The  only  way  to  ascertain  the  sense  of  the  Legislature 
in  using  the  word,  is  to  learn  the  military  sense  in  which  the 

larged,"  per   Story,  J.,   Martin  v.   Hunter's          \  Snell  v.  Bridgewater  Cotton  Gin  Manu- 

Leesee,  1  Wheat.  326 ;   Clark  v.  City  of  Utica,  facturing  Co.  24  Pick.  296.    See  this  case  also 

18  Barb.  451.  as  to  repeals  by  implication. 

*  1  Kent  Com.  462  ;  Clark  v.  City  of  Utica,  ||  Macy  v.  Raymond,  9  Pick.  286. 

18  Barb.  451.  j  The  United  States  v.  Jones,  3  Wash.  C. 

f  Merchants'  Bank  v.  Cook,  4  Pick.  405.  C.  R,  209. 


222  TECHNICAL  WORDS. 

word  is  commonly  used ;  for  in  the  enactment  of  laws,  when 
terms  of  art  or  peculiar  phrases  are  made  use  of,  it  must  be 
supposed  that  the  Legislature  have  in  view  the  subject-matter 
about  which  such  terms  or  phrases  are  commonly  employed." 

It  has  been  said  that  courts  of  justice  are  presumed  to  un- 
derstand the  meaning  of  technical  terms  in  a  statute,  and  that 
experts  need  not  be  called  to  interpret  them.f  But  in  practice 
I  should  suppose  this  assumption  would  be  found  to  be  very 
erroneous,  and  that  it  would  be  frequently  necessary  for  courts 
to  inform  themselves  by  testimony  as  to  the  meaning  of  terms 
of  art  or  science.  J 

A  question  has  been  raised  whether  the  same  .words  in  any 
one  statute  can  receive  different  meanings,  according  to  a  doc- 
trine applied  to  wills  ;  |  (a)  but  the  Chief  Justice  of  the  King's 
Bench  has  said,  "  We  disclaim  altogether  the  assumption  of 
any  right  to  assign  different  meanings  to  the  same  words  in  an 
act  of  Parliament,  on  the  ground  of  a  supposed  general  inten- 
tion in  the  act.  We  think  it  necessary  to  give  a  fair  and  reas- 
onable construction  to  the  language  used  by  the  Legislature ; 
but  we  are  not  to  assume  the  unwarrantable  liberty  of  varying 
the  construction,  for  the  purpose  of  making  the  act  consistent 
with  any  views  of  our  own."!"  On  this  subject  Vattel  says, 
"  It  does  not  follow,  either  logically  or  grammatically,  that  be- 
cause a  word  occurs  in  a  sentence  with  a  definite  sense,  that 
therefore  the  same  sense  is  to  be  adopted  in  every  sentence  in 
which  it  occurs."  ** 

We  have  thus  considered  the  object  to  be  attained  in  the 

*  Ex  parte  Hall,  1  Pick.  261,  262.  eadem.      Again  in  Hopkins  v.  Stapers,  Cro. 
+  Fashion  v.  Wards,  6  M'Lean,  52.  Eliz.  229,  that  ad  and   in  are  of  the  same 
$  We  have  but  little  idea  now  of  the  nicety  effect;  and  in  The  Warden  of  All  Souls  v. 
of  the  early  English  law,  in  regard  to  words;  Tanworth,  Cro.  Eliz.  232,  it  is  decided  that 
and  the  difficulty  was  then  increased  by  the  Elemos^nam  ought  to  be  Elmnosynam,  with  a 
use  of  a  foreign  and  a  dead  language.     So  in  double  e  :  "  The  common  course  is  so,  there- 
assize  of  nuisance,  "  The  plaintiff  counts  that  fore  it  is  good." 

exaltavit  domurn,  the  jury  finds  that  ertx.it, —  ||  Forth   v.   Chapman,     1    P.    Wm.    667; 

and  exception  taken  to  it;  but  the  court  was  Crooke  v.  De  Vandes,  9  Vesey,  197;  Elton  v. 

informed  by  the  grammarians  that  the  words  Eason,  19  Vesey,  77. 

were  of  one  sense."    Giles  v.  Ferrers,  Cro.  ^f  Reg.  v.  Comrs.  of  Poor  Laws  Holborn 

Eliz.  59.     So  see  Gerrard  v.  Dickinson,  Cro.  Union,  6  A.  &  El.  68,  69. 
Eliz.  196,  for  the  distinction  between  talisand          **  Vattel,  Book  2,  ch.  17,  p.  285. 

(a)  A  word  used  in  an  amendatory  statute  is  presumed  to  be  used  in  the  same 
sense  as  in  the  statute  amended.    Bobbins  v.  Omnibus  R.  R.  Co.  32  Gal.  473. 


INTERPRETATION  OF  WILLS.  223 

process  of  judicial  interpretation,  and  of  the  means  to  be  em- 
ployed. We  shall  in  our  next  chapter  consider  a  large  class  of 
cases,  already  referred  to,  where,  either  from  the  impossibility 
of  resolving  the  doubts  presented  by  a  statute  on  the  principle 
of  discovering  its  intent,  or  from  the  hardship  or  peculiarity  of 
the  particular  matter  presented,  the  judges  have  been  led  rather 
to  assume  the  duties  and  powers  of  legislators.  "We  shall  in- 
quire how  far  this  exercise  of  power  is  legitimate  or  proper ; 
and  under  this  head  we  shall  examine  the  subjects  of  liberal  or 
equitable,  and  of  strict  construction. 

It  is  proper  here  to  remark  that  in  considering  the  subject 
of  this  chapter,  the  mind  of  the  student  will  frequently  be  called 
to  the  analogies  between  the  construction  of  statutes  and  the 
interpretation  of  wills.  Those  analogies  are  numerous  and 
striking ;  *  but  on  the  other  hand,  there  are  many  and  equally 
striking  discrepancies.  Among  these  latter,  the  rules  govern- 
ing the  evidence  to  be  admitted  to  explain  amb;guities  in  wills, 
the  arbitrary  principles  that  have  been  adopted  for  their  con- 
struction, and  the  vague  discretion  exercised  by  the  courts 
under  the  name  of  the  doctrine  of  cy  presfi  are  very  prominent. 
I  have  thought  it  inexpedient  to  enlarge  this  work  to  the  ex- 
tent which  would  have  been  necessary  in  order  fully  to  exhibit 
the  relations  between  the  two  great  classes  of  subjects,  (a) 

*  I  believe  that  many  of  the  greatest  judi-  seems  to  assume  the  power  of  construing  stat- 

cial  minds  have  been  misled,  if  I  may  say  so  utes  beneficially,  or  in  other  words,  on  grounds 

pace  tantorum  virorum,   by  these   analogies,  of  equity  or  policy,  a  subject  which  we  shall 

In  Gore  v.  Brazier,  3  Mass.  523  &  541,  Par-  consider  in  our  next  chapter, 

sons,  C.  J.,  says,  "  Certainly  the  statute  ought  \  For  the  doctrine  of  Cy  Pres,   see  Story, 

to  have  a  construction  as  beneficial  to  credit-  Eq.  Jur.  §  1 1 69,  et  seq.     [See  also,  Wigram  & 

ors,  as  a  devise  to  executors  of  an  authority  O'Hara  on  Wills,  part  2,  ch.  II.] 
to  sell  lands  for  the  payment  of  debts."     This 

(a)  In  the  following  note  we  have  arranged  under  appropriate  heads,  according 
to  the  leading  thought  of  each  rule,  a  number  of  recent  decisions  bearing  upon  the 
general  rules  of  interpretation  and  construction.  This  method  will  be  more  con- 
venient for  the  reader  or  the  practitioner,  than  to  have  broken  up  the  material  into 
a  number  of  short  notes,  and  to  have  distributed  it  over  a  larger  space.  The  order 
of  arrangement,  and  the  leading  subjects  of  the  divisions,  will  be  indicated  by  the 
displayed  headings. 

Fundamental  and  General  Principles, — The  rules  of  construction  and  interpreta- 
tion of  acts  of  Congress,  and  of  statutes  of  State  Legislatures,  except  where,  in  regard 
to  the  latter,  the  State  Constitutions  otherwise  determine,  are  to  be  derived  from  the 
common  law.  Rice  v.  Railroad  Co.  1  Black,  358.  Construction  should  lean  toward 


224  INTERPRETATION   OF   WILLS. 

personal  liberty,  and  statutes  authorizing  arrest,  etc.,  are  to  be  strictly  construed, 
Elara  v.  Rawson,  21  Geo.  139  ;  Ramsey  v.  Foy,  10  Incl.  493.  It  is  said  that  where  a 
statute  is  ambiguous,  that  construction  should  be  given  which  is  most  favorable  to 
the  public.  Haydon  v.  Supervisors,  &c.  2  Nev.  371 ;  but  this  cannot  be  so  where  the 
law  purports  to  interfere  with  private  rights  of  property  or  person,  on  the  basis  of 
any  assumed  public  need  or  public  governmental  function,  for  it  is  clearly  settled  that 
all  such  statutes  must  be  strictly  construed,  and  the  benefit  of  all  reasonable  doubts 
and  ambiguities  must  be  given  to  the  individual  proprietor  or  possessor  of  the  right. 
An  intent  to  change  an  existing  law  should  clearly  appear,  Lee  v.  Forman,  3 
Mete.  (Ky.)  114 ;  and  this  applies  as  well  whether  the  existing  law  is  statutory  or 
'the  law  promulgated  by  judicial  decision.  As  a  plain  corollary  of  this  general  rule, 
statutes  should  not  be  so  construed  as  to  interfere  with  rights  previously  granted  by 
the  Legislature,  unless  the  intent  to  do  so  is  clear.  McAfee  y.  Southern  R.  R.  36 
Miss.  669. 

Common  and  Technical  Terms;  Interpretation  of  Particular  Terms. — Technical 
legal  terms,  as  a  general  rule,  and  in  the  absence  of  any  countervailing  intent  which 
displaces  the  rule,  are  to  be  taken  in  their  established  common-law  signification; 
thus  a  statute  giving  dower  in  lands  of  which  the  husband  was  seized,  does  not  in- 
clude a  contingent  remainder,  Apple  v.  Apple,  1  Head  (Tenn.)  348 ;  but  this  rule, 
although  very  general,  may  be  overcome  by  other  considerations,  and  even  without 
any  express  statement  of  a  contrary  intent;  e.  g.,  in  a  statute  using  the  phrase  "  in  an 
action  of  debt,"  there  was  no  express  statement  of  a  meaning  other  than  the  common- 
law  one,  but  as  there  was  no  such  technical  action  known  to  the  procedure  of  the 
State,  and  as  a  technical  interpretation  would  have  destroyed  the  plain  design  of  the 
statute,  it  was  held  that  the  phrase  was  not  used  in  its  legal  sense,  but  meant  any 
action  to  recover  money  for  the  breach  of  a  "contract.  Robinson  v.  Varnell, 
16  Tex.  382.  In  another  case,  the  word  "heirs"  was  held  to  mean  those  inheriting 
according  to  the  existing  laws  of  the  State,  and  not  those  inheriting  at  the  common- 
law.  Mace  v.  Cushman,  45  Me.  250.  This  decision  is  not  in  conflict  with  the  general 
rule  just  stated,  for  the  technical  legal  sense  spoken  of  means  such  sense  according  to 
the  law  of  the  State  in  which  the  statute  is  passed,  and,  in  the  absence  of  other  rules, 
that  sense  is  a  common-law  one  ;  but  if  the  original  common-law  signification  of  the 
phrase  or  term  had  been  previously  changed  in  the  particular  State  by  legislation  or 
by  judicial  decision,  of  course  the  legal  meaning  thus  determined  is  to  be  taken  as 
the  one  which  the  Legislature  intended  and  adopted  in  the  statute.  A  term  in  use 
in  English  law,  employed  in  a  statute  without  any  definition,  is  to  be  construed  as  it 
is  understood  in  the  English  law,  e.  g.,  "  next  of  kin"  was  held  to  include  only  legit- 
imate persons,  McCool  v.  Smith,  1  Black,  459 ;  but  a  very  important  limitation 
should  be  added  to  this  statement  of  the  rule,  namely,  that  the  term  employed  in 
the  statute  has  not  prior  thereto  received,  either  by  legislation  or  by  judicial  decis- 
ion, a  meaning  within  the  particular  State,  or  the  United  States,  if  the  statute  was 
passed  by  Congress,  different  from  that  given  to  it  by  the  English  law.  If  the  term 
had  previously  received  such  different  meaning,  then  it  is  to  be  interpreted  accord- 
ing to  that  new  meaning,  although  the  statute  in  which  it  occurs  is  silent  as  to  its 
meaning;  this  is  an  obvious  corollary  of  the  principle  stated  above. 

Words  in  common  use,  when  found  in  a  statute,  are  to  be  taken  in  their  ordinary 
•  sense,  and  technical  words  in  their  technical  sense,  unless  as  respects  either  a  con- 
trary intent  plainly  appears ;  but  the  real  obvious  intent  is  to  prerail  over  any  mere 
literal  sense ;  thus  "  house  of  another,"  in  a  statute  against  breaking  and  entering, 
was  held  to  mean  only  the  mansion  and  the  houses  so  connected  therewith,  as  to 


SPECIAL  RULES  OF  CONSTRUCTION.  225 

form  in  law  part  and  parcel  thereof.  Neville  v.  State,  7  Cold.  78.  That  the  ordi- 
nary and  popular  signification  is  to  be  taken,  except  as  to  terms  of  art,  which  are  to 
be  interpreted  in  their  technical  signification,  and  that  the  meaning  of  terms  and 
words  is  to  be  ascertained  from  the  whole  statute,  and  is  to  be  such  as  will  best  carry 
out  the  general  intent,  and  that  where  a  word  is  used  in  a  particular  sense  in  one 
part  of  a  statute,  it  will  be  presumed  to  be  used  in  the  same  sense  throughout,  and 
that  when  the  words  "  house  "  and  "  branch  "  (speaking  of  a  Legislature),  in  a  Con- 
stitution are  generally  used  to  denote  a  duly  constituted  quorum,  they  will  be  so 
construed  where,  in  another  clause,  a  two-thirds  vote  of  such  "  house  "  or  "  branch  " 
is  required.  See  Green  v.  Weller,  32  Miss.  650.  If  two  acts  are  in  pari  materia,  the 
second  one  being  in  effect  amendatory  of  the  first,  a  word  in  the  second  will  not  be 
presumed  to  be  used  in  a  different  sense  from  that  in  which  it  is  used  in  the  first. 
Bobbins  v.  Omnibus  R.  R.  32  Cal.  472. 

The  ordinary  and  popular  meaning  of  words  is  to  be  preferred.  Mayor,  &c.  v. 
Winter,  29  Ala.  651 ;  Schrifer  v.  Wood,  5  Blatch.  C.  C.  215 ;  thus  "  internal  improve- 
ments," used  in  a  statute  conferring  power  upon  a  municipality  in  their  aid,  is  not 
to  be  construed  as  merely  improvements  internal  to  the  town.  Ibid.  ;  and  see  Park- 
inson v.  State,  14  Md.  184 ;  and  "  wagon  "  does  not  include  a  "  hackney  coach," 
Quigley  v.  Gorham,  5  Cal.  418;  and  "connection  ''  of  railroads  was  held  to  mean, 
such  arrangement  that  freight  and  passengers  could  be  conveniently  passed  from  one 
to  the  other  by  transition  of  cars  or  otherwise.  Philadelphia,  &c.  R.  R.  v.  Cata- 
wissa,  &c.  R.  R.  53  Penn.  St.  20. 

Ambiguous  words  are  to  be  interpreted  by  comparing  therewith  the  context  of 
the  whole  statute,  and  by  considering  its  reason,  spirit,  and  cause.  State  v.  JudgeT 
&c.  12  La.  Ann.  777  ;  and  the  law  is  to  be  construed  as  a  whole.  State  v.  Weigel,  48 
Mo.  29.  A  statute  which  treats  of  things  of  an  inferior  degree,  cannot  ordinarily  be 
extended  by  general  words  to  things  of  a  higher  degree  ;  but  where  all  the  actions, 
of  an  inferior  degree  were  provided  for  in  express  terms,  and  there  were  general 
words  in  addition,  it  was  held  that  they  covered  an  action  of  a  higher  degree,  which 
was  within  their  scope.  Ellis  v.  Murray,  28  Miss.  129.  It  is  not  so  much  the  ab- 
stract meaning  of  words  which  is  to  be  regarded,  but  the  sense  in.  which  they  are 
used  in  the  particular  statute,  and  this  is  to  be  ascertained  from  the  context.  Mcln- 
tyre  v.  Ingraham,  35  Miss.  25.  See  further  as  to  technical  terms,  Ormsby  Co.  v. 
State,  6  Nev.  283. 

Grammar  and  Punctuation. — Common  sense  should  prevail  over  strict  grammat- 
ical rules,  and  punctuation  should  not  control.  Gyger's  Estate,  65  Penn.  St.  311.  i 
The  punctuation  of  a  statute  is  not  to  be  considered.  Gushing  v.  Warrick,  9  Gray, 
382  ;  Hamilton  v.  Steamboat  Hamilton,  16  Ohio,  N.  S.  428.  A  clause  purporting  to 
define  the  meaning  of  "  obligation  or  other  security  of  the  United  States,"  as  used  in. 
other  parts  of  the  act,  was  construed  as  applying  to  the  terms  "  obligation"  and 
"  security"  actually  used,  the  phrase  as  quoted  not  being  in  fact  found  in  any  other 
part  of  the  statute.  U.  S.  v.  Rossvally,  3  Ben.  (U.  S.)  157. 

General  Scope  of  the  Statute. — Words  are  to  be  interpreted  with  reference  to  the 
general  scope  and  object  of  the  statute.  Thus  a  statute  creating  a  city  out  of  a  part 
of  a  town,  and  providing  for  its  organization,  etc.,  and  adding  that  after  a  certain 
day  it  should  cease  to  be  a  part  of  the  town,  was  construed  to  mean  that  such  sep- 
aration should  only  occur  on  the  completion  of  the  organization  ;  although  the  clause 
providing  for  such  separation  on  the  given  day  was  in  itself  not  limited,  it  was  con- 
strued as  limited  by  the  rest  of  the  statute.  State  v.  Button,  25  Wise.  109. 

The  construction  of  any  particular  clause,  as  well  as  of  an  entire  statute,  should 
15 


226  SPECIAL   RULES   OF   CONSTRUCTION. 

be  reasonable,  and  the  provision  should  not  be  perverted  so  as  to  work  injustice  or 
as  to  include  cases  not  intended  to  fall  within  it.  Thus  a  statute  requiring  any 
writing,  etc.,  upon  which  a  petition  (the  plaintiffs  first  pleading  in  many  States)  or 
other  pleading  is  founded,  to  be  filed  in  court,  was  held  not  to  apply  to  a  subscrip- 
tion paper  or  to  articles  of  association,  when  sued  upon.  Workman  v.  Campbell,  46 
lyio.  305.  Particular  provisions  are  not  to  be  extended  beyond  the  general  scope  of 
the  statute,  unless  manifestly  designed.  Thus  a  statute  as  to  religious  societies  was 
limited  to  those  within  the  State.  Estate  of  Ticknor,  13  Mich.  44.  "Assignee,"  in 
one  case  was  held  to  include  "  grantee,"  as  being  within  the  reason  and  object  of  the 
act.  Mattoon  v.  Young,  45  N.  Y.  696.  It  has  been  said  that  the  true  rule  is  to  sup- 
pose the  law-giver  actually  present,  and  to  ask  him,  "  Did  you  intend  to  cover  such 
a  case  ? "  etc.  Ryegate  v.  Wardsboro,  30  Vt.  746.  But  it  is  very  plain  that  such  a 
rule  does  not  in  the  least  remove  any  difficulty  or  suggest  any  criterion  of  interpre- 
tation, for  as  the  questioner  must  answer  his  own  question,  he  gains  nothing  by  pro- 
posing it.  The  previous  state  of  the  law,  and  the  existing  facts  as  shown  by  recitals 
in  the  preamble  or  in  the  act,  or  as  shown  by  extrinsic  proof,  are  to  be  looked  to. 
Atty.  Gen.  v.  Powis,  1  Kay,  186. 

The  whole  Statute  to  le  harmonised. — The  whole  statute  is  to  be  so  construed  that 
all  its  provisions  may  be  harmonized,  if  possible.  Scott  v.  State,  22  Ark.  369 ;  Davy 
v.  Burlington,  &c.  R.  R.  31  Iowa,  553.  Thus  when  one  section  said  that  a  certain 
notice  should  be  published  ten  days  in  succession,  and  another  section  said  that  all 
notices  under  the  act  should  be  published  daily,  Sundays  excepted,  it  was  held  that 
the  publication  of  the  notice  first  mentioned  should  be  ten  days,  subtracting  Sundays, 

Ithat  is,  for  a  period  of  ten  days,  the  Sundays  being  counted  as  part  of  the  ten  days. 
Taylor  v.  Palmer,  31  Cal.  240.  Incongruities  are  to  be  so  construed  as  to  harmonize 
with  the  general  intent  of  the  whole.  Commonwealth  v.  Conyngham,  66  Penn.  St. 
99.  An  act  required  examiners  "  to  be  appointed  by  the  Court  of  C.  P.  at  the  first 
term  of  the  court  in  each  year."  This  act  was  in  fact  not  passed  until  after  the  first 
term  of  that  year.  It  was  held  that  examiners  should  be  appointed  for  that  year 
upon  the  passage  of  the  act.  Ibid.  General  words  at  the  end  of  a  statute  refer  to 
and  qualify  the  whole ;  but  if  they  occur  in  the  middle,  they  are  not  to  be  extended 
to  what  follows  them,  unless  clearly  so  intended.  Coxon  v.  Doland,  2  Daly  66.  The 
sections  of  a  code  upon  one  subject  are  to  be  construed  as  a  single  statute.  Mobile, 
&c.  R.  R.  v.  Malone,  46  Ala.  391. 

/  A  Limiting  Clause  is  generally  to  be  restrained  to  the  last  preceding  antecedent. 
Cushing  v.  Worrick,  9  Gray,  382. 

Subsequent  Clause. — If  a  subsequent  clause  is  obscure,  it  will  not  control  a  previous 
clear  provision.  State  v.  Williams,  8  Ind.  191. 

Consequences  of  a  particular  Interpretation. — Incidental  effects  are  to  be  considered 
if  the  meaning  is  doubtful  (In  re  Day,  9  Blatchf.  C.  C.  285),  but  not  if  the  meaning 
is  plain.  Learned  v.  Corley,  43  Miss.  687.  Where  the  meaning  is  plain,  there  is  no 
room  for  construction.  Bradbury  v.  Wagenhorst,  54  Penn.  St.  180;  U.  S.  v.  Rags-- 
-dale,  1  Hempstead,  497 ;  Fitzpatrick  v.  Gibhart,  7  Kans.  35 ;  State  v.  Washoe  Co. 
'•Comm'rs,  6  Nev.  104.  And  in  such  case  the  consequences  are  for  the  Legislature 
•and  not  for  the  court.  Bosley  v.  Mattingley,  14  B.  Mon.  89  ;  Coffin  v.  Rich,  45  Me. 
507 ;  Dudley  v.  Reynolds,  1  Kans.  285. 

Construction  ut  res  magis  valeat. — A  statute  by  its  terms  amending  section  293 
will  be  held  to  refer  to  section  296,  if  it  would  otherwise  be  a  nullity.  People  v. 
King,  28  Cal.  265.  Words  were  treated  as  surplusage  where  the  statute  would  other- 
wise fail  of  its  object,  in  U.  S.  v.  Stern,  5  Blatch.  C.  C.  512.  Where  the  language  is 


SPECIAL  RULES  OF  CONSTRUCTION.  227 

eliptical,  the  necessary  words  supplied  must  be  such  and  so  construed  as  to  have 
some  force.  Nichols  v.  Halliday,  27  Wise.  406.  Where  a  statute  named  eighty  per- 
sons, and  enacted  that  they,  "  or  any  three  of  them  be  and  hereby  are  appointed 
commissioners,"  it  was  construed  as  leaving  to  the  election  of  the  persons  named 
whether  the  whole  or  any  three  should  act,  and  about  forty  having  acted,  their  pro- 
ceedings were  held  valid,  as  it  appeared  that  the  whole  number  had  not  elected  to 
act,  and  the  excess  over  three  could  do  no  harm.  Commonwealth  v.  Westchester, 
&c.  R.  R.  3  Grant's  Gas.  (Penn.)  200. 

Contemporaneous  Construction. — The  contemporaneous  construction  of  a  statute 
under  which  rights  of  property  have  been  acquired,  should  be  followed,  if  possible 
— e.  g.,  construction  by  a  Probate  Court.  In  re  Warfield,  22  Cal.  59.  Contem- 
poraneous construction  by  a  Legislature  is  of  high  authority.  Philadelphia,  &c.  R.  R. 
v.  Catawissa  R.  R.  53  Penn.  St:  20.  The  practical  construction  given  to  a  statute 
by  the  public  officers  of  the  State,  and  acted  upon  by  the  people  thereof,  is  to  be 
considered,  and  is  perhaps  decisive  in  case  of  doubt.  Union  Ins.  Co.  v.  Hoge,  21 
How.  35 ;  Matthews  v.  Shores,  24  111.  27 ;  Solomon  v.  Comm'rs,  &o.  41  Geo.  157 ;  see 
Plummer  v.  Plummer,  37  Miss.  185.  A  Constitution  is  to  be  construed  in  the  sense 
it  is  supposed  it  was  understood  when  adopted  (Leavenworth  Co.  v.  Miller,  7  Kans. 
479),  and  as  to  legislative  construction  of  a  Constitution,  see  Ex  parte  Selma  &  Gulf 
R.  R.  45  Ala.  696. 

Legislative  Construction  ~by  Declaratory  Acts,  etc. — A  rule  of  construction  laid  down 
by  the  Legislature  is  not  necessarily  invalid, — e.  g.,  a  provision  that  the  statutes 
which  may  at  any  time  be  in  force  in  the  State  relative  to  the  Circuit  Courts  shall 
relate  also  to  the  County  Courts  of  a  certain  county  (Prentiss  v.  Danaher,  20  Wise. 
311) ;  but  in  fact  this  provision  was  in  no  true  sense  a  "  construction  "  of  any  statute 
by  the  Legislature.  It  was  a  direct  enactment  in  reference  to  the  County  Courts  of 
the  specified  county,  conferring  or  limiting  jurisdiction,  or  regulating  procedure,  or 
whatever  else  might  be  the  subject-matter.  See,  also,  State  v.  Oskins,  28  Ind.  364; 
Morgan  v.  Smith,  4  Minn.  104.  Where  a  statute  declared  that  the  charter  of  a  city 
should  be  construed  so  as  to  give  it  full  control  over  all  ferries  within  its  limits,  this, 
although  of  no  force  as  a  construction  of  the  charter,  operated  it  seems  as  a  grant  of 
the  power,  if  that  was  not  already  possessed  under  the  charter,  Aiken  v.  Western 
R.  R.  20  N.  Y.  370.  That  the  opinion  of  a  Legislature  subsequent  to  that  which 
enacted  the  statute,  as  to  its  construction,  should  have  no  more  weight  than  that  of 
private  persons.  See  Bingham  v.  Supervisors,  &c.,  8  Minn.  441.  This  was  a  case 
where  the  Legislature  had  repealed  so  much  of  a  certain  statute  as  authorized  the 
payment  of  a  certain  fee  of  seventy-five  cents,  and  it  was  attempted  to  make  this  a 
Legislative  declaration  that  the  act  repealed  did  authorize  such  fee.  It  seems,  also, 
that  an  amendatory  statute  giving  a  right  of  appeal  in  certain  cases,  does  not  show 
that  the  right  did  not  exist  under  the  original  statute.  Tilford  v.  Ramsey,  43  Mo. 
410.  Where  a  statute  in  the  emergency  clause  gives  as  a  reason  for  the  emergency 
that  there  is  no  law  punishing  the  offence  which  it  is  to  cover,  this  is  equivalent  to 
a  declaration  that  the  statute  shall  be  prospective  only  in  its  operation.  Smith  v. 
State,  28  Ind.  321.  That  legislative  construction  should  have  weight,  but  should 
not  be  conclusive,  see  Pike  v.  Megoun,  44  Mo.  491. 

Stare  Decisis. — For  instances  of  the  application  of  the  rule,  see  Field  v.  Goldsby, 
28  Ala.  218  ;  Seale  v.  Mitchell,  5  Cal.  401.  But  if  satisfied  that  the  decision  was 
erroneous,  the  courts  will  not  follow  the  rule.  Bane  v.  Wick,  6  Ohio  N.  S.  13.  In 
the  same  case,  and  between  the  same  parties,  the  rule  is  imperative,  even  in  a  second 
appeal.  Matthews  v.  Sands,  29  Ala.  136;  Miller  v.  Jones,  II.  174;  Clary  v.  Hoag- 


228  SPECIAL  RULES   OF   CONSTRUCTION. 

iand,  6  Cal.  685.  And  where  rules  laid  down  may  be  fairly  presumed  to  have  beenr 
acted  upon  as  rules  of  property,  they  should  be  sustained,  though  not  upon  points 
necessarily  involved  in  the  case.  Matheson  v.  Hearin,  29  Ala.  210.  That  the  rule 
will  be  adhered  to  in  matter  relating  to  property,  unless  it  appears  that  the  mischief 
resulting  from  such  adherence  will  be  greater  than  that  resulting  from  a  change. 
See  Boon  v.  Bowers,  30  Miss.  246 ;  Day  v.  Munson,  14  Ohio,  N.  S.  488.  A  construc- 
tion of  a  clause  in  a  State  Constitution  as  to  the  method  of  amending  statutes,  is  not? 
a  rule  of  property.  Greencastle  v.  State,  28  Ind.  382. 

Presumptions. — The  fact  that  a  rule  of  law  or  of  equity  is  embodied  in  the  Revised 
Statutes,  does  not  raise  a  presumption  that  such  was  not  the  law  before.  Nunally 
v.  White,  3  Mete.  (Ky.)  584.  It  will  not  be  presumed  that  a  State  intended  to 
abridge  its  governmental  powers  (Gilman  v.  Sheboygan,  2  Black.  510), — e.  g.,  to  sur- 
render its  power  to  tax.  St.  Louis  v.  Boatmen's  Ins.  Co.  47  Mo.  150.  It  is  not  to  be 
presumed  that  a  word  is  used  in  one  tariff  act  in  a  different  sense  from  that  in  which 
it  was  employed  in  a  former  act  for  which  the  present  one  was  substituted.  Roose- 
velt v.  Maxwell,  3  Blatch.  C.  C.  391.  It  is  not  to  be  presumed  that  a  State  intended 
to  waive  or  discharge  a  public  right,  e.  g.,  to  discharge  the  sureties  on  a  sheriff's 
bond.  Bennett  v.  McWhorter,  2  W.  Va.  441.  Nor  that  a  statute  intends  what  is 
unreasonable.  Neenan  v.  Smith,  50  Mo.  525.  Nor  will  exemption  from  taxation  be 
presumed.  Minot  v.  Phil.  W.  &  B.  R.  R.  2  Abb.  (U.  S.)  323.  It  will  be  presumed 
that  the  Legislature  intended  to  require  notice  of  proceedings  to  take  private  prop- 
erty under  the  power  of  eminent  domain.  Boonville  v.  Orrnrod,  26  Mo.  193 ;  "Wick- 
bam  v.  Page,  49  Mo.  526. 

Implication. — When  a  statute  commands  an  act  to  be  done,  it  authorizes  all  that 
is  necessary  for  its  performance,  e.  g.,  when  the  Legislature  increases  the  salary  of  an 
officer  whom  a  municipality  is  bound  to  pay,  it  authorizes  such  municipality  to  raise 
the  money.  Green  v.  New  York,  2  Hilton,  203.  Where  the  Constitution  provided 
that  charters  should  not  be  granted  except  where  in  the  judgment  of  the  Legislature 
general  laws  are  insufficient  to  meet  the  case,  such  judgment  is  implied  in  the  pas- 
sage of  a  charter  without  any  recital  upon  the  subject,  the  court  relying  somewhat 
upon  the  fact  that  many  such  charters  had  been  granted  without  question,  and  that 
important  rights  had  thus  accrued.  Johnson  v.  Joliet,  &c.  R.  R.  23  111.  202.  It  is 
plain,  however,  that  this  construction  makes  the  constitutional  clause  a  dead  letter. 
See,  also,  State  v.  Donehey,  8  Clarke  (la.)  396,  where,  the  Constitution  providing 
that  if  the  ''  Legislature  shall  deem  any  law  of  immediate  importance,"  they  may 
provide  that  the  same  shall  take  effect  upon  publication  in  newspapers,  it  was  held 
that  the  direction  that  the  statute  was  thus  to  take  effect  was  a  sufficient  indication 
of  the  Legislative  judgment  as  to  its  "  immediate  importance,"  and  was  a  compliance 
with  the  Constitution.  These  cases  are  not  entirely  analogous,  for  in  the  latter  one, 
the  constitutional  provision  being  affirmative  in  form,  may  fairly  be  treated  as  direc- 
tory ;  while  in  the  former  the  provision  is  negative  in  form  and,  according  to  all 
canons  of  interpretation,  is  not  directory. 

Where  a  statute  prohibited  all  sales  of  liquor,  not  excepting  sales  for  medicinal 
or  sacramental  purposes,  such  exception  was  made  by  implication  in  Thornasson  v. 
State,  15  Ind.  449.  And  as  a  general  rule,  all  cases  to  which  a  statute  cannot  consti- 
tutionally apply,  will  be  excepted  by  necessary  implication  from  even  the  most 
express  and  absolute  general  provisions.  Opinion  of  Justices,  41  N.  H.  553. 

Where  a  statute  assumes  jurisdiction  to  exist,  and  makes  explicit  provision  for 
the  mode  of  its  exercise,  this  is  sufficient  to  create  the  jurisdiction.  State  v.  Miller, 
23  Wise.  634.  A  statute  is  not  unconstitutional  because  it  is  summary  in  its  grant 


SPECIAL  RULES  OF  CONSTRUCTION.  229 

of  power,  and  fails  to  prescribe  the  form  of  proceeding  to  effect  the  desired  object, 
since  all  reasonable  and  necessary  incidents  are  impliedly  granted  with  the  power. 
People  v.  Eddy,  57  Barb.  593.  Where  the  general  policy  of  the  laws  in  pari  materia 
was  to  fix  a  maximum  for  the  compensation  of  registers  of  the  land  office,  and  an  act 
was  passed  giving  in  one  section  the  right  to  charge  certain  fees  for  certain  services, 
and  giving  in  the  next  section  the  right  to  compensation  for  similar  past  services,  at 
the  same  rate,  to  register  now  in  or  out  of  office,  and  the  last  section  contained  a 
proviso  limiting  the  compensation  to  the  maximum  allowed  by  law,  it  seems  a  similar 
proviso  should  be  implied  in  the  first  section.  U.  S.  v.  Babbit,  1  Black,  55. 

Revision. — A  change  of  phraseology  in  a  revision  will  not  be  regarded  as  altering 
the  law  where  it  had  been  well  settled  by  plain  language  in  the  statutes,  or  by 
judicial  construction  thereof,  unless  it  is  clear  that  such  was  the  intent.  Hughes  v. 
Farrar,  45  Me.  72  ;  Burnham  v.  Stevens,  33  N.  H.  247 ;  Overfield  v.  Sutton,  1  Mete. 
(Ky.)  621 ;  McNamara  v.  Minnesota  R.  R.  12  Minn.  388;  Conger  v.  Barker,  11  Ohio 
N.  S.  1.  But  where  language  is  changed  in  a  special  enactment  not  part  of  a  re- 
vision, it  indicates  a  change  of  intent,  and  calls  for  a  change  of  construction.  Rich 
v.  Keys'er,  54  Penn.  St.  86.  Where  a  criminal  code  repealed  all  statutes  upon  the 
same  "  subject-matter,"  it  did  not  repeal  statutes  against  certain  crimes  not  provided 
for  therein.  State  v.  Fuller,  14  La.  Ann.  678.  The  sections  of  a  former  statute,  or 
chapter  of  a  statute,  being  separated  and  scattered  by  a  revision,  are  still  to  have  the 
same  construction  as  before.  Smith  v.  Smith,  19  Wise.  522.  The  General  Statutes 
of  Missouri,  which  were  adopted  in  1865,  enact  that  their  provisions,  so  far  as  they 
are  the  same  as  those  of  existing  laws,  shall  be  construed  as  a  continuing  in  force  of 
such  laws,  and  not  as  new  enactments  ;  it  was  held  that  a  section  thereof  curing  cer- 
tain defects  in  conveyances  "  heretofore  "  made,  and  identical  with  a  provision  of  a 
statute  passed  in  1855,  did  not  operate  upon  conveyances  made  subsequent  to  1855. 
Bishop  v.  Schneider,  46  Mo.  472. 

Reference  Statutes. — If  one  statute  refers  to  another  for  the  powers  given  by  the 
former,  the  statute  referred  to  is  to  be  considered  as  incorporated  in  the  one  making 
the  reference.  Turney  v.  Wilton,  36  111.  385.  Thus,  where  certain  proceedings  of  a 
water-works  company  were  to  be  conducted  according  to  an  act  of  1853,  relating  to 
railroad  companies,  and  the  act  of  1853  was  afterwards  repealed  and  another  act  was 
substituted  in  its  place,  it  was  held  that  the  act  of  1853  remained  in  force  so  far  as 
incorporated  by  reference  into  the  water  company's  act.  Spring,  &c.  Works  v.  San 
Francisco,  22  Cal.  434;  Sika  v.  Chicago,  &c.  R.  R.  21  Wise.  370.  A  statute  regulat- 
ing procedure,  and  referred  to  as  the  rule  for  another  case,  is  to  govern  as  stibse- 
quently  modified  from  time  to  time.  Kugler's  Appeal,  55  Penn.  St.  123.  Where  an 
action  given  by  a  statute  is  by  a  subsequent  statute  extended  to  another  case,  every- 
thing annexed  to  the  action  by  the  first  statute  is  included,  and  applies  to  that  other 
case.  Baltimore,  &c.  R.  R.  v.  Wilson,  2  W.  Va.  528.  A  statute  authorizing  the  issue 
of  certificates  to  assignees  of  certain  claims,  repeals  a  prohibition  of  the  assignment 
of  such  claims.  Perry  v.  Glass,  25  Tex.  368.  As  to  when  recitals  of  a  settlement  as 
though  it  were  a  valid  settlement  in  a  statute  will  validate  it,  see  Howard  v.  Earl  of 
.Shrewsbury,  Law  R.  2  Ch.  759. 

That  a  statute  granting  powers  and  referring  to  another  statute  for  their  definition 
only  gives  the  general  powers,  and  not  the  particular  powers  conferred  by  the  statute 
•referred  to,  see  Ex  parte  Greene,  29  Ala.  52;  Matthews  v.  Sands,  II.  136.  A  stat- 
ute requiring  proceedings  in  replevin  before  justices  to  be  the  same  as  in  the  Circuit 
'Court,  a  subsequent  statute  altering  the  proceedings  in  the  Circuit  Court  was  held  to 
.affect  in  the  same  manner  those  before  justices.  McKnight  v.  Crinnion,  22  Mo.  559. 


230  VATTEL'S   RULES   OF   CONSTRUCTION. 

Where  the  provisions  of  an  act  are  adopted  by  general  reference,  they  will  be 
more  liberally  construed  than  if  originally  passed  with  reference  to  that  particular 
subject,  and  only  that  portion  applicable  and  appropriate  is  adopted.  Jones  v.  Dex- 
ter 8  Flor.  276.  Thus,  when  the  "law  of  descents"  was  by  general  reference 
adopted  to  govern  the  distribution  of  personal  property,  certain  provisoes  in  the 
statute  regulating  descents,  considered  inapplicable  to  personal  property,  were  held 
not  to  have  been  adopted.  Hid.  Reference  to  a  particular  map  in  a  statute  makes 
it  part  of  the  statute.  People  v.  Dana,  22  Cal.  11.  As  to  whether  reference  to  a 
contract  as  an  existing  contract  in  a  subsequent  statute  validates  it  so  far  as  it  may 
be  of  questionable  validity,  on  grounds  of  public  policy,  see  Galloway  v.  London,  Law 
R.  1  H.  L.  39. 

Similar  Statutes. — Statutes  having  similar  objects  are  to  be  construed  alike. 
Thus  the  same  principles  applied  in  the  construction  of  bankrupt  laws  are  to  govern 
in  the  case  of  a  statute  to  prevent  frauds  by  incorporated  companies  having  a  similar 
object  in  view,  namely,  an  equal  distribution  of  assets  among  creditors.  Receivers  of 
People's  Bank  v.  Paterson  Savings  Bank,  2  Stockt.  13. 


The  following  extracts,  vide  supra,  p.  191,  notes,  are  from  that  part  of 
Vattel's  work  which  relates  to  the  Interpretation  of  Treaties,  Liv.  II,  ch.  17> 
§§262  to  310: 

It  is  necessary  to  establish  rules  founded  on  reason,  authorized  by  the  law 
of  nature,  capable  of  diffusing  light  over  what  is  obscure,  of  determining  what 
is  uncertain,  and  of  frustrating  the  views  of  him  who  acts  with  duplicity  in 
forming  the  compact.  Let  us  begin  with  those  that  tend  particularly  to  this 
last  end — with  those  maxims  of  justice  and  equity  which  are  calculated  to  re- 
press fraud,  and  to  prevent  the  effects  of  its  artifices. 

The  first  general  maxim  of  interpretation  is,  that  it  is  not  allowable  to 
interpret  what  has  no  need  of  interpretation.  When  a  deed  is  worded  in  clear 
and  precise  terms,  when  its  meaning  is  evident  and  leads  to  no  absurd  conclusion, 
there  can  be  no  reason  for  refusing  to  admit  the  meaning  which  such  deed 
naturally  presents.  To  go  elsewhere  in  search  of  conjunctures,  in  order  to 
restrict  or  extend  it,  is  but  an  attempt  to  elude  it. 

Those  cavillers  who  dispute  the  sense  of  a  clear  and  determinate  article, 
are  accustomed  to  seek  their  frivolous  subterfuges  in  the  pretended  intentions 
and  views  which  they  attribute  to  its  author.  It  would  be  very  often  dangerous 
to  enter  with  them  into  the  discussion  of  those  supposed  views,  that  are  not  pointed 
out  in  the  piece  itself.  The  following  rule  is  better  calculated  to  foil  such 
cavillers,  and  will  at  once  cut  short  all  chicanery.  If  he  who  could  and  ought 
to  have  explained  himself  clearly  and  fully  has  not  done  it,  it  is  the  worse  for 
him ;  he  cannot  be  allowed  to  introduce  subsequent  restrictions  which  he  has 
not  expressed.  This  is  a  maxim  of  the  Roman  law  :  Pactionem  obscuram  Us 
nocere  in  quorum  fuit  potestate  legem  apertius  conscribere.  The  equity  of  this 
rule  is  glaringly  obvious,  and  its  necessity  is  not  less  evident. 

The  third  general  maxim  or  principle  on  the  subject  of  interpretation,  is 
That  neither  the  one  nor  the  other  of  the  parties  interested  in  the  contract  has  a, 
right  to  interpret  the  deed  or  treaty  according  to  his  own  fancy.  For  if  you  are 
at  liberty  to  affix  whatever  meaning  you  please  to  my  promise,  you  will  have 
the  power  of  obliging  me  to  do  whatever  you  choose,  contrary  to  my  intentions, 
and  beyond  my  real  engagements  ;  and,  on  the  other  hand,  if  I  am  allowed  to 
explain  my  promises  as  I  please,  I  may  render  them  vain  and  illusory,  by 
giving  them  a  meaning  quite  different  from  that  which  they  presented  to  your 


VATTEL'S  RULES  OF   CONSTRUCTION.  231 

and   in  -which   you  must  have  understood  them  at  the  time  of  your  accepting 
them. 

On  every  occasion  when  a  person  could  and  ought  to  have  made  known  his 
intention,  ive  assume  for  true  against  him  what  he  has  sufficiently  declared. 
This  is  an  incontestible  principle,  applied  to  treaties ;  for  if  they  are  not  a 
vain  play  of  words,  the  contracting  parties  ought  to  express  themselves  in 
them  with  truth,  and  according  to  their  real  intentions. 

In  the  interpretation  of  a  treaty,  or  of  any  other  deed  whatsoever,  the 
question  is,  to  discover  what  the  contracting  parties  have  agreed  upon — to- 
determine,  precisely,  on  any  particular  occasion,  what  has  been  promised 
and  accepted — that  is  to  say,  not  only  what  one  of  the  parties  intended  to 
promise,  but  also  what  the  other  must  reasonably  and  candidly  have  supposed 
to  be  promised  to  him,  what  has  been  sufficiently  declared  to  him,  and  what 
must  have  influenced  him  in  his  acceptance.  Every  deed,  therefore,  and  every 
treaty,  must  be  interpreted  by  certain  fixed  rules  calculated  to  determine  its  mean- 
ing, as  naturally  understood  by  the  parties  concerned  at  the  time  when  the  deed^ 
was  drawn  up  and  accepted.  This  is  a  fifth  principle. 

Let  us  now  enter  into  the  particular  rules  on  which  the  interpretation  ought 
to  be  formed,  in  order  to  be  just  and  fair.  Since  the  sole  object  of  the  lawful 
interpretation  of  the  deed  ought  to  be  the  discovery  of  the  thoughts  of  the 
author  or  authors  of  that  deed,  whenever  we  meet  with  any  obscurity  in  it,  we 
are  to  consider  what  probably  were  the  ideas  of  those  who  drew  up  the  deed,  and 
to  interpret  it  accordingly.  This  is  the  general  rule  for  all  interpretations.  It 
particularly  serves  to  ascertain  the  meaning  of  particular  expressions  whose 
signification  is  not  sufficiently  determinate. 

Let  us  suppose  that  a  husband  has  bequeathed  to  his  wife  all  his  money. 
It  is  required  to  know  whether  this  expression  means  only  his  ready  money,  or 
whether  it  extends  also  to  that  which  is  lent  out,  and  is  due  on  notes  and  other 
securities.  If  the  wife  is  poor,  if  she  was  beloved  by  her  husband,  if  the 
amount  of  the  ready  money  be  inconsiderable,  and  the  value  of  the  other 
property  greatly  superior  to  that  of  the  money  both  in  specie  and  in  paper, — 
there  is  every  reason  to  presume  that  the  husband  meant  to  bequeath  her  as 
well  the  money  due  to  him,  as  that  actually  contained  in  his  coffers.  On  the 
other  hand,  if  the  woman  be  rich,  if  the  amount  of  the  ready  specie  be  very 
considerable,  and  the  money  due  greatly  exceeds  in  value  all  the  other  property, — 
the  probability  is  that  the  husband  meant  to  bequeath  to  his  wife  the  ready 
money  only. 

The  contracting  parties  are  obliged  to  express  themselves  in  such  manner 
that  they'  mutually  understand  each  other.  This  is  evident  from  the  very 
nature  of  the  transaction.  Those  who  form  the  contract  concur  in  the  same 
intentions ;  they  agree  in  desiring  the  same  thing ;  and  how  shall  they  agree  in 
this  instance,  if  they  do  not  perfectly  understand  each  other  ?  Without  this, 
their  contract  will  be  no  more  than  a  mockery  or  a  snare.  If,  then,  they  ought 
to  speak  in  such  a  manner  as  to  be  understood,  it  is  necessary  that  they  should 
employ  the  words  in  their  proper  signification — the  signification  which  common 
usage  has  affixed  to  them — and  that  they  annex  an  established  meaning  to- 
every  term,  every  expression,  they  make  use  of. 

From  all  these  incontestable  truths,  results  this  rule  :  In  the  interpretation 
of  treaties,  compacts,  and  promises,  we  ought  net  to  deviate  from  the  'common  use: 
of  the  language,  unless  we  have  very  strong  reasons  for  it. 

In  all  human  affairs,  where  absolute  certainty  is  not  at  hand  to  point  out  the 
way,  we  must  take  probability  for  our  guide.  In  most  cases,  it  is  extremely 
probable  that  the  parties  have  expressed  themselves  conformably  to  the 
established  usage;  and  such  probability  ever  affords  a  stronger  presumption, 
which  cannot  be  overruled  but  by  a  still  stronger  presumption  to  the  contrary, 


232  VATTEL'S  RULES  OF  CONSTRUCTION. 

Mahomed,  Emperor  of  the  Turks,  at  the  taking  of  Negropont,  having 
promised  a  man  to  spare  his  head,  caused  him  to  be  cut  in  two  through  the 
middle  of  the  body.  Tamerlane,  after  having  engaged  the  city  of  Sebastia, 
under  promise  of  shedding  no  blood,  caused  all  the  soldiers  of  the  garrison 
to  be  buried  alive  :  gross  subterfuges  which,  as  Cicero  remarks,  only  serve  to 
aggravate  the  guilt  of  the  perfidious  wretch  who  has  recourse  to  them.  To 
spare  the  head  of  any  one,  and  to  shed  no  blood,  are  expressions  according  to 
common  custom,  and,  especially  on  such  an  occasion,  manifestly  imply  to  spare 
the  lives  of  the  parties.  All  these  pitiful  subtilties  are  overthrown  by  this 
unerring  rule  :  When  we  evidently  see  what  is  the  sense  that  agrees  with  the  intention 
of  the  contracting  parties,  it  is  not  allowable  to  wrest  their  words  to  a  contrary 
meaning.  The  intention,  sufficiently  known,  furnishes  the  true  matter  of  the 
convention,  what  is  promised  and  accepted,  demanded  and  granted. 

Is  it  necessary,  in  an  enlightened  age,  to  say  that  mental  reservation  cannot 
be  admitted  in  treaties'?  This  is  manifest,  since,  by  the  very  nature  of  the 
treaty,  the  parties  are  bound  to  express  themselves  in  such  manner  that  they 
may  mutually  understand  each  other.  There  is  scarcely  an  individual  now  to 
be  found  who  would  not  be  ashamed  of  building  upon  a  mental  reservation. 
What  can  be  the  use  of  such  an  artifice,  unless  to  lull  the  opposite  party  into  a 
false  security,  under  the  vain  appearance  of  a  contract  ?  It  is,  then,  a  real 
;  piece  of  knavery. 

Technical  terms,  or  terms  peculiar  to  the  arts  and  sciences,  ought  commonly 
to  be  interpreted  according  to  the  definition  given  of  them  by  masters  of  the 
art,  or  persons  versed  in  the  knowledge  of  the  art  or  science  to  which  they 
belong.  I  say  commonly,  for  this  rule  is  not  so  absolute  but  that  we  may  and 
«ven  ought  to  deviate  from  it,  when  we  have  good  reasons  for  such  deviation  ; 
as,  for  instance,  if  it  were  proved  that  he  who  speaks  in  a  treaty,  or  in  any 
other  deed,  did  not  understand  the  art  or  science  from  which  he  borrowed  the 
term,  that  he  was  unacquainted  with  its  import  as  a  technical  word,  that  he 
employed  it  in  a  vulgar  acceptation,  etc. 

If,  however,  the  technical  or  other  terms  relate  to  things  that  admit  of 
different  degrees,  we  ought  not  scrupulously  to  adhere  to  definitions,  but  rather 
to  take  the  terms  in  a  sense  agreeable  to  the  context ;  for  a  regular  definition 
describes  a  thing  in  its  most  perfect  state, — and  yet  it  is  certain  that  we  do  not 
always  mean  it  in  that  state  of  its  utmost  perfection  whenever  we  speak  of  it. 

Now,  the  interpretation  should  only  tend  to  the  discovery  of  the  will  of  the 
contracting  parties  to  each  term.  Would  he  who  had  stipulated  for  the  assist- 
ance of  ten  thousand  good  troops  have  any  reason  to  insist  upon  soldiers  of 
whom  the  very  worst  should  be  comparable  to  the  veterans  of  Julius  Caesar  "? 
And  if  a  prince  had  promised  his  ally  a  good  general,  must  he  send  him  none 
but  a  Marlborough  or  a  Turenne? 

There  are  figurative  expressions  that  are  Become  so  familiar  in  the  common 
use  of  language,  that  in  numberless  instances  they  supply  the  place  of  proper 
terms;  so  that  we  ought  to  take  them  in  a  figurative  sense,  without  paying  any 
attention  to  their  original,  proper,  and  direct  signification  :  the  subject  of  the 
discourse  sufficiently  indicates  the  meaning  that  should  be  affixed  to  them.  To 
hatch  a  plot,  to  carry  fire  and  sword  into  a  country,  are  expressions  of  this  sort ; 
and  there  can  scarcely  occur  an  instance  where  it  would  not  be  absurd  to  take 
them  in  their  direct  and  literal  sense. 

There  is  not,  perhaps,  any  language  that  does  not  also  contain  words  which 
signify  two  or  more  different  things,  and  phrases  which  are  susceptible  of  more 
than  one  sense.  Thence  arises  ambiguity  in  discourse.  The  contracting  parlies 
ought  carefully  to  avoid  it.  Designedly  to  use  it,  with  a  view  to  elude  their 
engagements  in  the  sequel,  is  downright  perfidy ;  since  the  faith  of  treaties 
obliges  the  contracting  parties  to  express  their  intentions  clearly.  But  if  an 


VATTEL'S   RULES  OF   CONSTRUCTION.  233 

ambiguous  expression  has  found  its  way  into  a  deed,  it  is  the  part  of  the  inter- 
preter to  clear  up  any  doubt  thereby  occasioned. 

The  following  is  the  rule  that  ought  to  direct  the  interpretation  in  this  as 
well  as  in  the  preceding  case  :  We  ought  always  to  affix  such  meaning  to  the  ex- 
pressions as  is  most  suitable  to  the  subject  or  matter  in  question.  For  by  a  true 
interpretation  we  endeavor  to  discover  the  thoughts  of  the  persons  speaking,  or 
of  the  contracting  parties  in  a  treaty.  Now,  it  ought  to  be  presumed  that  he 
who  has  employed  a  word  which  is  susceptible  of  many  different  significations, 
has  taken  it  in  that  which  agrees  with  his  subject. 

Let  us.  illustrate  this  rule  by  examples.  The  word  day  is  understood  of  the 
natural  day,  or  the  time  during  which  the  sun  affords  us  his  light,  and  of  the 
civil  day,  or  the  space  of  twenty-four  hours.  Where  it  is  used,  in  a  convention, 
to  point  out  a  space  of  time,  the  subject  itself  manifestly  shows  that  the  parties 
mean  the  civil  day,  or  the  term  of  twenty-four  hours.  It  was  therefore  a  piti- 
ful subterfuge,  or  rather  notorious  perfidy,  in  Cleomenes,  when,  having  con- 
cluded a  truce  of  some  days  with  the  people  of  Argos,  and  finding  them  asleep 
on  the  third  night  in  reliance  on  the  faith  of  the  treaty,  he  killed  a  part  of  their 
number  and  made  the  rest  prisoners,  alleging  that  the  nights  were  not  compre- 
hended in  the  truce.  The  word  steel  may  be  understood  of  the  metal  itself,  or 
of  certain  instruments  made  of  it ;  in  a  convention  which  stipulates  that  the 
enemy  shall  lay  down  their  steel,  it  evidently  means  their  weapons ;  where- 
fore, Pericles,  in  the  example  related  above,  gave  a  fraudulent  interpretation  to 
those  words,  since  it  was  contrary  to  the  nature  of  the  subject  manifestly  pointed 
out. 

If  any  of  those  expressions  which  are  susceptible  of  different  signification 
occur  more  than  once  in  the  same  piece,  we  cannot  make  it  a  rule  to  take  it 
everywhere  in  the  same  signification.  For  we  must,  conformably  to  the  pre- 
ceding rule,  take  such  expression  in  each  article  according  as  the  subject  requires 
— -pro  substrata  materia,  as  the  masters  of  the  art  say.  The  word  day,  for  in- 
stance, has  two  significations,  as  we  have  just  observed.  If,  therefore,  it  be  said 
in  a  convention,  that  there  shall  be  a  truce  of  fifty  days,  on  condition  that  com- 
missioners from  both  parties  shall,  during  eight  successive  days,  jointly  endeavor 
to  adjust  the  dispute, — the  fifty  days  of  the  truce  are  civil  days  of  twenty-four 
hours ;  but  it  would  be  absurd  to  understand  them  in  the  same  sense  in  the 
second  article,  and  to  pretend  that  the  commissioners  should  labor  eight  days 
and  nights  without  intermission. 

Every  interpretation  that  leads  to  an  absurdity  ought  to  be  rejected ;  or,  in 
other  words,  we  should  not  give  to  any  piece  a  meaning  from  which  any  absurd 
consequences  would  follow,  but  must  interpret  it  in  such  a  manner  as  to  aVoid 
absurdity. 

Those  fanatic  Jews  who  scrupled  to  defend  themselves  when  the  enemy 
attacked  them  on  the  Sabbath  day,  gave  an  absurd  interpretation  to  the  fourth 
commandment.  Why  did  not  they  abstain  from  dressing,  walking,  and  eat- 
ing ?  These  also  are  "  works,"  if  the  term  be  strained  to  its  utmost  rigor. 

It  is  said  that  a  man  in  England  married  three  wives,  in  order  that  he  might 
not  be  subject  to  the  penalty  of  the  law  which  forbids  marrying  two. 

sit  is  not  to  be  presumed  that  sensible  persons  in  treating  together,  or  transact- 
ing any  other  serious  business,  meant  that  the  result  of  their  proceedings  should 
prove  a  mere  nullity.  The  interpretation,  therefore,  which  would  render  a  treaty 
null  and  inefficient  cannot  be  admitted.  We  may  consider  this  rule  as  a  branch 
of  the  preceding ;  for  it  is  a  kind  of  absurdity  to  suppose  that  the  very  terms 
of  a  deed  should  reduce  it  to  mean  nothing.  It  ought  to  be  interpreted  in  such 
a  manner  as  that  it  may  have  its  effect,  and  not  prove  vain  and  nugatory.  And 
in  this  interpretation  we  proceed. 

Thucydides  relates  that  the  Athenians,  after  having  promised  to  retire  from 


234  VATTEL'S   RULBS   OF    CONSTRUCTION. 

the  territories  of  the  Boeotians,  claimed  a  right  to  remain  in  the  country  under 
pretense  that  the  lands  actually  occupied  by  their  army  did  not  belong  to  the 
Boeotians ;  a  ridiculous  quibble,  since,  by  giving  that  sense  to  the  treaty,  they 
reduced  it  to  nothing,  or  rather  to  a  puerile  play  upon  words. 

If  he  who  has  expressed  himself  in  an  obscure  or  equivocal  manner  has  spoken 
elsewhere  more  dearly  on  the  same  subject,  he  is  the  best  interpreter  of  his  own 
words.  We  ought  to  interpret  his  obscure  or  equivocal  expression  in  such  a 
manner  that  may  agree  with  those  clear  and  unequivocal  terms  which  he  has 
elsewhere  used,  either  in  the  same  deed  or  on  some  other  similar  occasion. 

Let  us  suppose,  for  instance,  that  two  allies  have  reciprocally  promised  each 
other,  in  case  of  necessity,  the  assistance  of  ten  thousand  foot  soldiers,  who  are 
to  be  supported  at  the  expense  of  the  party  that  sends  them,  and  that  by  a  pos- 
terior treaty  they  agree  that  the  number  of  auxiliary  troops  shall  be  fifteen 
thousand,  without  mentioning  their  support;  the  obscurity  which  remains  in 
this  article  of  the  new  treaty  is  dissipated  by  the  clear  and  express  stipulation 
contained  in  the  former  one. 

As  the  allies  do  not  give  any  indication  that  they  have  changed  their  minds 
with  respect  to  the  support  of  the  auxiliary  troops,  we  are  not  to  presume  any 
such  change ;  and  those  fifteen  thousand  men  are  to  be  supported  as  the  ten 
thousand  promised  in  the  first  treaty. 

It  frequently  happens  that,  with  a  view  to  conciseness,  people  express  im- 
perfectly, and  with  some  degree  of  obscurity,  things  which  they  suppose,  to  be 
sufficiently  elucidated  by  the  preceding  matter,  or  which  they  intend  to  explain 
in  the  sequel ;  and,  moreover,  words  and  expressions  have  a  different  force, 
sometimes  even  a  quite  different  signification,  according  to  the  occasion,  their 
connection,  and  their  relation  to  the  words.  The  connection  and  train  of  the 
discourse  is  therefore  another  source  of  interpretation.  We  must  consider  the 
whole  discourse  together,  not  so  much  the  signification  which  it  may  individually 
admit  of,  as  that  which  it  ought  to  have  from  the  context  and  spirit  of  the  dis- 
course. Such  is  the  maxim  of  the  Roman  law,  Incivile  est,  nisi  tota  leg  e  per- 
specta,  una  aliqui  particula  ejus  proposita  judicare,  vel  respondere. 

The  very  connection  and  relation  of  things  in  question  helps  also  to  discover 
and  establish  the  true  sense  of  a  treaty,  or  of  any  other  piece.  The  interpreta- 
tion ought  to  be  made  in  such  a  manner  that  all  the  parts  may  appear  consonant 
to  each  other — that  what  follows  may  agree  with  what  preceded,  unless  it  evi- 
dently appear  that,  by  the  subsequent  clauses,  the  parties  intended  to  make 
some  alteration  in  the  preceding  ones.  For  it  is  to  be  presumed  that  the 
authors  of  a  deed  had  an  uniform  and  steady  train  of  thinking;  that  they  did 
not  aim  at  inconsistencies  and  contradictions,  but  rather  that  they  intended  to 
explain  one  thing  by  another — and,  in  a  word,  that  one  and  the  same  spirit  reigns 
throughout  the  same  production  or  the  same  treaty.  Let  us  render  this  more 
plain  by  an  example. 

A  treaty  of  alliance  declares,  that  in  case  one  of  the  allies  be  attacked,  each 
of  the  others  shall  assist  him  with  a  body  of  ten  thousand  foot,  and  supported ; 
and  in  another  article  it  is  said  that  the  ally  who  is  attacked  shall  be  at  liberty 
to  demand  the  promised  assistance  in  cavalry  rather  than  in  infantry.  Here  we 
see  that,  in  the  first  article,  the  allies  have  determined  the  quantum  of  the  suc- 
cor, and  its  value,  that  of  ten  thousand  foot ;  and  in  the  latter  article,  without 
appearing  to  intend  any  variation  in  the  value  or  number,  they  leave  the  nature 
of  the  succors  to  the  choice  of  the  party  who  may  stand  in  need  of  them.  If, 
therefore,  the  ally  who  is  attacked  calls  upon  the  others  for  cavalry,  they  will 
give  him,  according  to  the  established  proportion,  an  equivalent  to  ten  thousand 
foot.  But  it  appears  that  the  intention  of  the  latter  article  was,  that  the  prom- 
ised succors  should  in  certain  cases  be  augmented — if,  for  instance,  it  be  said> 
that  in  case  one  of  the  allies  happens  to  be  attacked  by  an  enemy  of  considerably 


VATTEL'S  RULES  OF  CONSTRUCTION.  235 

superior  strength,  and  more  powerful  in  cavalry,  succors  should  be  furnished  in 
cavalry  and  not  in  infantry.  It  appears  that,  in  this  case,  the  promised  assistance 
ought  to  be  ten  thousand  horse. 

The  reason  of  the  law  or  of  the  treaty — that  is  to  say,  of  the  motive  which 
led  to  the  making  of  it,  and  the  object  in  contemplation  at  the  time — is  the  most 
certain  clue  to  lead  us  to  the  discovery  of  its  true  meaning  ;  and  great  attention 
should  be  paid  to  the  circumstance,  whenever  there  is  question  either  of  ex- 
plaining an  obscure,  ambiguous,  indeterminate  passage  in  a  law  or  treaty,  or  of 
applying  it  to  a  particular  case.  When  once  we  certainly  know  the  reason 
which  alone  has  determined  the  will  of  the  person  speaking,  we  ought  to  inter-  i 
pret  and  apply  his  words  in  a  manner  suitable  to  that  reason  alone. 

But  we  ought  to  be  very  certain  that  we  know  the  true  and  only  reason  of 
the  law,  the  promise,  or  the  treaty.  In  matters  of  this  nature  it  is  not  allowable 
to  indulge  in  vague  and  uncertain  conjectures,  and  to  suppose  reasons  and  views 
where  there  are  none  certainly  known.  If  the  piece  in  question  is  in  itself  ob- 
scure— if,  in  order  to  discover  its  meaning,  we  have  no  other  resource  than  the 
investigation  of  the  author's  views  or  the  motives  of  the  deed — we  may  then 
have  recourse  to  conjecture;  and,  in  default  of  absolute  certainty,  adopt,  as  the 
true  meaning,  that  which  has  the  greatest  degree  of  probability  on  its  side. 
But  it  is  a  dangerous  abuse  to  go,  without  necessity,  in  search  of  motives 
and  uncertain  views,  in  order  to  wrest,  restrict,  or  extend  the  meaning  of  a 
deed  which  is  of  itself  sufficiently  clear,  and  carries  no  absurdity  on  the  face  of 
it.  Such  a  procedure  is  a  violation  of  that  incontestible  maxim,  that  it  is  not 
allowable  to  interpret  what  has  no  need  of  interpretation.  Much  less  are  we 
allowed — when  the  author  of  a  piece  has  in  the  piece  itself  declared  his  reasons 
and  motives — to  attribute  to  him  some  secret  reason  which  may  authorize  us 
in  giving  an  interpretation  repugnant  to  the  natural  meaning  of  the  expres- 
sions. Even  though  he  should  have  entertained  the  views  which  we  attribute 
to  him,  yet  if  he  has  concealed  them  and  announced  different  ones,  it  is  upon 
the  latter  alone  that  we  must  build  our  interpretation,  and  not  upon  those  which 
the  author  has  not  expressed  :  we  assume  as  true  against  him  what  he  has  suffi- 
ciently declared. 

We  ought  to  be  the  more  circumspect  in  this  kind  of  interpretation,  as  it 
frequently  happens  that  several  motives  concur  to  determine  the  will  of  the 
party  who  speaks  in  a  law  or  in  a  promise.  Perhaps  the  combined  influence 
of  those  motives  was  necessary,  in  order  to  determine  his  will ;  perhaps  each 
one  of  them,  taken  individually,  would  have  been  sufficient  to  produce  that 
effect.  In  the  former  case,  if  we  are  perfectly  certain  that  it  was  only  in  con- 
sideration of  several  concurrent  reasons  and  motives  that  the  Legislature  or  the 
contracting  parties  consented  to  the  law  or  the  contract,  the  interpretation  and 
application  ought  to  be  made  in  a  manner  agreeable  to  all  those  concurrent  rea- 
sons, and  none  of  them  must  be  overlooked.  But  in  the  latter  case,  when  it  is 
evident  that  each  of  the  reasons  which  have  concurred  in  determining  the  will 
was  sufficient  to  produce  that  effect,  so  that  the  author  of  the  piece  in  question 
would,  by  each  of  the  reasons  separately  considered,  have  been  induced  to 
form  the  same  determination  which  he  has  formed  upon  all  the  reasons  taken 
in  the  aggregate,  his  words  must  be  so  interpreted  and  applied  as  to  make  them 
accord  with  each  of  those  reasons  take,n  individually.  Suppose  a  prince  has 
promised  certain  advantages  to  all. foreign  Protestants  and  artisans  who  will 
come  and  settle  in  his  estates ;  if  that  prince  is  in  no  want  of  subjects,  but  of 
artisans  only, — and  if,  on  the  other  hand,  it  appears  that  he  does  not  choose  to 
have  any  other  subjects  than  Protestants — his  promise  must  be  so  interpreted 
as  to  relate  only  to  such  foreigners  as  unite  those  two  characters  of  Protestants 
and  artisans.  But  if  it  is  evident  that  this  prince  wants  to  people  his  country, 
and  that,  although  he  would  prefer  Protestant  subjects  to  others,  he  has  in  par- 


236  VATTEL'S  RULES  OF  CONSTRUCTION. 

ticular  so  great  a  want  of  artisans  that  he  would  gladly  receive  them  of  what- 
ever religion  they  be,  his  words  should  be  taken  in  a  disjunctive  sense,  so  that 
it  will  be  sufficient  to  be  either  a  Protestant  or  an  artisan  in  order  to  enjoy  the 
promised  advantages. 

The  consideration  of  the  reason  of  a  law  or  promise  not  only  serves  to  ex- 
plain the  obscure  or  ambiguous  expressions  which  occur  in  the  piece,  but  also 
to  extend  or  restrict  its  several  provisions  independently  of  the  expressions,  and 
in  conformity  to  the  intention  and  views  of  the  Legislature  or  the  contracting 
parties,  rather  than  to  their  words.  For,  according  to  the  remark  of  Cicero, 
the  language  invented  to  explain  the  will  ought  not  to  hinder  its  effect.  When 
the  sufficient  and  only  reason  of  a  provision,  either  in  a  law  or  a  promise,  is  per- 
fectly certain  and  well  understood,  we  extend  that  provision  to  cases  to  which 
the  same  reason  is  applicable,  although  they  be  not  comprised  within  the  sig- 
nification of  the  terms.  This  is  what  is  called  interpretation.  It  is  commonly 
said  that  we  ought  to  adhere  rather  to  the  spirit  than  to  the  letter.  Thus  the 
Mohamedans  justly  extend  the  prohibition  of  wine  in  the  Koran  to  all  intoxicat 
ing  liquors :  that  dangerous  quality  being  the  only  reason  that  could  induce 
their  legislator  to  prohibit  the  use  of  wine. 

But  we  should  here  observe  the  caution  above  recommended,  and  even  still 
greater,  since  the  question  relates  to  an  application  in  no  wise  authorized  by  the 
terms  of  the  deed.  We  ought  to  be  thoroughly  convinced  that  we  know  the  true 
and  only  reason  of  the  law  or  the  promise,  and  that  the  author  has  taken  it  in  the 
same  latitude  which  must  be  given  to  it  in  order  to  make  it  reach  the  case  to  which 
we  mean  to  extend  the  law  or  promise  in  question. 

The  rule  just  laid  down  serves  also  to  defeat  the  pretexts  and  pitiful  evasions 
of  those  who  endeavor  to  elude  laws  or  treaties.  Good  faith  adheres  to  the  in- 
tention ;  fraud  insists  on  the  terms,  when  it  thinks  that  they  can  furnish  a  cloak 
for  its  prevarications.  The  isle  of  Pharos,  near  Alexandria,  was,  with  other 
lands,  tributary  to  the  Rhodians.  The  latter  having  sent  collectors  to  levy  the 
tribute,  the  queen  of  Egypt  amused  them  for  some  time  at  her  court,  using  in 
the  meanwhile  every  possible  exertion  to  join  Pharos  to  the  mainland,  by  means 
of  moles;  after  which  she  laughed  at  the  Rhodians,  and  sent  them  a  message, 
intimating  that  it  was  very  unreasonable  in  them  to  pretend  to  levy  on  the  main 
land,  a  tribute  which  they  had  no  title  to  demand  except  from  the  islands.  There 
existed  a  law  which  forbade  the  Corinthians  to  give  vessels  to  the  Athenians. 
They  sold  them  a  number  at  five  drachmae  each.  The  following  was  an  expe- 
dient worthy  of  Tiberius  :  custom  not  permitting  him  to  cause  a  virgin  to  be 
strangled,  he  ordered  the  executioner  first  to  deflower  the  young  daughter  of 
Sejanus,  and  then  to  strangle  her. 

Restrictive  interpretation,  which  is  the  reverse  of  extensive  interpretation,  is 
founded  on  the  same  principle.  As  we  extend  a  clause  to  those  cases  which, 
though  not  comprised  within  the  meaning  of  the  terms,  are  nevertheless  com- 
prised in  the  intention  of  that  clause,  and  included  in  the  reasons  that  produced 
it,  in  like  manner  we  restrict  a  law  or  promise,  contrary  to  the  literal  significa- 
tion of  the  terms — our  judgment  being  directed  by  the  reason  of  that  law  or  that 
promise ;  that  is  to  say,  if  a  case  occurs  to  which  the  well-known  reason  of  a 
law  or  promise  is  utterly  inapplicable,  that  the  case  ought  to  be  excepted, 
although,  if  we  were  barely  to  consider  the  meaning  of  the  terms,  it  should  seem 
to  fall  within  the  purview  of  the  law  or  promise. 

It  is  impossible  to  think  of  every  thing,'  to  foresee  every  thing,  and  to  ex- 
1  press  every  thing ;  it  is  sufficient  to  enounce  certain  things  in  such  a  manner 
as  to  make  known  our  thoughts  concerning  things  of  which  we  do  not  speak ; 
and,  as  Seneca,  the  rhetorician,  says,  there  are  exceptions  so  clear,  that  it  is  un- 
necessary to  express  them.  The  law  condemns  to  suffer  death  whoever  strikes 
his  father :  shall  we  punish  him  who  has  shaken  and  struck  his  father,  to  recover 


VATTEL'S  RULES  OF  CONSTRUCTION.         .    237 

him  from  a  lethargic  stupor  ?  Shall  we  punish  a  young  child,  or  a  man  in  a 
delirium,  who  has  lifted  his  hand  against  the  author  of  his  life  ?  In  the  former 
case,  the  reason  of  the  law  does  not  hold  good ;  and  to  the  two  latter,  it  is  not 
applicable. 

We  have  recourse  to  restrictive  interpretation  in  order  to  avoid  falling  into 
absurdities.  A  man  bequeaths  his  house  to  one,  and  to  another  his  garden,  the 
only  entrance  into  which  is  through  the  house.  It  would  be  absurd  to  suppose 
that  he  had  bequeathed  to  the  latter  a  garden  into  which  he  could  not  enter  ;  we 
must  therefore  restrict  the  pure  and  simple  donation  of  the  house,  and  under- 
stand that  it  was  given  only  upon  the  condition  of  giving'  a  passage  to  the 
garden. 

When  a  case  arises  in  which  it  would  be  too  severe  and  too  prejudicial  to 
any  one  to  interpret  a  law  or  a  promise  according  to  the  rigor  of  the  terms,  a 
restrictive  interpretation  is  then  also  used,  and  we  except  the  case  in  question 
agreeably  to  the  interpretation  of  the  Legislature,  or  of  him  who  made  the 
promise;  for  the  Legislature  intends  only  what  is  just  and  equitable;  and,  in 
contracts,  no  one  can  enter  into  such  engagements  in  favor  of  another  as  shall 
essentially  supersede  the  duty  he  owes  to  himself. 

Thus,  towards  the  end  of  the  last  century,  Victor  Amadeus.  Duke  of  Savoy, 
found  himself  under  the  necessity  of  separating  from  his  allies,  and  of  receiv- 
ing law  from  France,  to  avoid  losing  his  states.  The  king,  his  son,  would  have 
had  good  reasons  to  justify  a  separate  peace  in  the  year  1745,  but,  upheld  by  his 
courage,  and  animated  by  just  views  of  his  true  interest,  he  embraced  the  gen- 
erous resolution  to  struggle  against  an  extremity  which  might  have  dispensed 
with  his  persisting  in  his  engagements. 

We  have  said  above  that  we  should  take  the  expressions  in  the  sense  that 
agrees  with  the  subject  or  the  matter.  Restrictive  interpretation  is  also  directed 
by  this  rule.  If  the  subject  or  the  matter  treated  of  will  not  allow  that  the 
terms  of  a  clause  should  be  taken  in  their  full  extent,  we  should  limit  the  sense 
according  as  the  subject  requires.  Let  us  suppose  that  the  custom  of  a  particu- 
lar country  confines  the  entail  of  fiefs  to  the  male  line,  properly  so  called  :  if  an 
act  of  enfeoffment  in  that  country  declares  that  the  fief  is  given  to  a  person  for 
himself  and  his  male  descendants,  the  sense  of  these  last  words  must  be  re- 
stricted to  the  males  descending  from  males,  for  the  subject  will  not  admit  of 
our  understanding  them  also  of  males  who  are  the  issue  of  females,  though  they 
are  reckoned  among  the  male  descendants  of  the  first  possessor. 

The  following  question  has  been  proposed  and  debated  : — Whether  promises 
include  a  tacit  condition  of  the  state  of  affairs  continuing  the  same  ;  or,  whether 
a  change  happening  in  the  state  of  affairs  can  create  an  exception  to  the  promise, 
and  even  render  it  void  ?  The  principle  derived  from  the  reason  of  the  promise 
must  solve  the  question.  If  it  be  certain  and  manifest  that  the  reason  of  the 
consideration  of  the  present  state  of  things  was  one  of  the  reasons  which  occa- 
sioned the  promise — that  the  promise  was  made  in  consideration  or  consequence 
of  that  state  of  things — it  depends  on  the  preservation  of  things  in  the  same 
state.  This  is  evident,  since  the  promise  was  made  only  upon  that  supposition. 
When,  therefore,  that  state  of  things  which  was  essential  to  the  promise,  and 
without  which  it  certainly  would  not  have  been  made,  happens  to  be  changed, 
the  promise  falls  to  the  ground  when  its  foundation  fails.  And  in  particular 
cases  where  things  cease  for  a  time  to  be  in  the  state  that  has  produced  or  con- 
curred to  produce  the  promise,  an  exception  is  to  be  made  to  it.  An  elective 
prince,  being  without  issue,  has  promised  to  an  ally  that  he  will  procure  his  ap- 
pointment to  the  succession.  He  has  a  son  born.  Who  can  doubt  that  the 
promise  is  void  by  this  event  ? 

But  we  ought  to  be  very  cautious  and  moderate  in  the  application  of  the 
present  rule.  It  would  be  a  shameful  perversion  of  it  to  take  advantage  of 


238  VATTEL'S   RULES  OF  CONSTRUCTION. 

every  change  that  happens  in  the  state  of  affairs,  in  order  to  disengage  ourselves 
from  our  promises.  Were  such  conduct  adopted,  there  could  be  no  dependence 
placed  on  any  promise  whatever.  That  state  of  things  alone  in  consideration 
of  which  the  promise  was  made,  is  essential  to  the  promise,  and  it  is  only  by  a 
change  in  that  state  that  the  effect  of  the  promise  can  be  lawfully  prevented  or 
suspended.  Such  is  the  sense  in  which  we  are  to  understand  that  maxim  of  the 
civilians,  Conventio  omnis  intelligitur  rebus  sic  stantibus. 

What  we  say  of  promises  must  also  be  understood  as  extending  to  laws.  A 
law  which  relates  to  a  certain  situation  of  affairs  can  only  take  place  in  that 
situation.  We  ought  to  reason  in  the  same  manner  with  respect  to  the  em- 
peror, turned  back  on  being  informed  of  the  death  of  Galba. 

In  unforeseen  cases,  that  is  to  say,  when  the  state  of  things  happens  to  be 
such  as  the  author  of  a  deed  has  not  foreseen,  and  could  not  have  thought  of,  we 
should  rather  be  guided  by  his  intention  than  by  his  words,  and  interpret  the 
instrument  as  he  himself  would  interpret  it  if  he  were  on  the  spot,  or  conforma- 
bly to  what  he  would  have  done  if  he  had  foreseen  the  circumstances  which  are 
at  present  known.  This  rule  is  of  great  use  to  judges,  and  to  all  those  in  society 
'.  who  are  appointed  to  carry  into  effect  the  testamentary  regulations  of  the  citi- 
zens. A  father  appoints  by  will  a  guardian  for  his  children  who  are  under  age. 
After  his  death  the  magistrate  finds  that  the  guardian  he  has  nominated  is  an 
extravagant  profligate,  without  property  or  conduct ;  he  therefore  dismisses  him 
and  appoints  another,  according  to  the  Roman  laws,  adhering  to  the  intention  of 
the  testator  and  not  to  his  words  ;  for  it  is  but  reasonable  to  suppose — and  we 
are  to  presume  it  as  a  fact — that  the  father  never  intended  to  give  his  children 
a  guardian  who  should  ruin  them,  and  that  he  would  have  nominated  another 
had  he  known  the  vices  of  the  person  he  appointed. 

When  the  things  which  constitute  the  reason  of  a  law  or  convention  are  con- 
sidered not  as  actually  existing,  but  simply  as  possible, — or,  in  other  words, 
when  the  fear  of  an  event  is  the  reason  of  a  law  or  a  promise, — no  other  cases 
can  be  excepted  from  it  than  those  in  which  it  can  be  proved  to  demonstration 
that  the  event  is  really  impossible.  The  bare  possibility  of  the  event  is  suffi- 
cient to  preclude  all  exceptions.  If,  for  instance,  a  treaty  declares  that  no  army 
or  fleet  shall  be  conducted  to  a  certain  place,  it  will  not  be  allowable  to  conduct 
thither  an  army  or  fleet,  under  pretence  that  no  harm  is  intended  by  such  a  step  ; 
for  the  object  of  a  clause  of  this  nature  is  not  only  to  prevent  a  real  evil,  but 
also  to  keep  all  danger  at  a  distance,  and  to  avoid  even  the  slightest  subject  of 
uneasiness. 

We  have  already  observed,  that  men's  ideas  and  language  are  not  always 
perfectly  determinate.  There  is,  doubtless,  no  language  in  which  there  do  not 
occur  expressions,  words,  or  entire  phrases,  susceptible  of  a  more  or  less  exten- 
sive signification.  Many  a  word  is  equally  applicable  to  the  genus  or  the  spe- 
cies. The  word  fault  implies  intentional  guilt  or  simple  error.  Several  species 
of  animals  have  but  one  name  common  to  both  sexes,  as  partridge,  lark,  spar- 
row, etc.  When  we  speak  of  horses  merely  with  a  view  to  the  services  they 
render  to  mankind,  mares  also  are  comprehended  under  that  name.  In  techni- 
cal language,  a  word  has  sometimes  a  more  or  sometimes  a  less  extensive  sense 
than  in  vulgar  use.  The  word  "  death,"  among  civilians,  signifies  not  only  natu- 
ral death,  but  also  civil  death.  Verbum,  in  the  Latin  grammar,  signifies  only 
that  part  of  speech  called  the  verb ;  but  in  common  use,  it  signifies  any  word 
in  general. 

But  it  is  to  this  head  that  the  famous  distinction  between  things  of  a  favor- 
able, and  those  of  an  odious  nature  particularly  belongs. 

When  the  provisions  of  a  law  or  a  convention  are  plain,  clear,  determinate, 
and  attended  with  no  doubt  or  difficulty  in  the  application,  there  is  no  room  for 
any  interpretation  or  comment.  The  precise  point  of  the  will  of  the  Legislature, 


VATTEL'S  RULES  OF  CONSTRUCTION.  239 

or  the  contracting  parties,  is  what  we  must  adhere  to.  But  if  their  expressions 
are  indeterminate,  vague,  or  susceptible  of  a  more  or  less  extensive  sense — if 
that  precise  point  of  their  intention  cannot,  in  the  particular  case  in  question, 
be  discovered  and  fixed  by  the  other  rules  of  interpretation — we  must  presume 
it,  according  to  the  laws  of  reason  and  equity ;  and,  for  this  purpose,  it  is  neces- 
sary to  pay  attention  to  the  nature  of  things  to  which  the  question  relates. 
There  are  certain  things  of  which  equity  admits  the  extension  rather  than  the 
restriction  ;  that  is  to  say,  that,  with  respect  to  those  things,  the  precise  point 
of  the  will  not  being  discovered  in  the  expressions  of  the  law  or  the  contract,  it 
is  safer,  and  more  consistent  with  equity,  to  suppose  and  fix  that  point  in  the 
more  extensive  than  in  the  more  limited  sense  of  the  terms, — to  give  a  latitude  to 
the  meaning  of  the  expressions,  than  to  restrict  it.  These  are  the  things  called 
favorable.  Odious  things,  on  the  other  hand,  are  those  of  which  the  restriction 
tends  more  certainly  to  equity  than  the  extension.  Let  us  figure  to  ourselves 
the  intention  or  the  will  of  the  Legislature,  of  the  contracting  parties,  as  a  fixed 
point.  At  that  point  precisely  should  we  stop,  if  it  be  clearly  known ;  if  un- 
certain, we  should,  at  least,  endeavor  to  approach  it.  In  things  favorable,  it  is 
better  to  pass  beyond  that  point  than  not  to  reach  it ;  in  things  odious,  it  is 
better  not  to  reach  it  than  to  pass  beyond  it. 

It  will  not  now  be  difficult  to  show,  in  general,  what  things  are  favorable  and 
what  are  odious.  In  the  first  place,  every  thing  that  tends  to  the  common  ad- 
vantage in  conventions,  or  that  has  a  tendency  to  place  the  contracting  parties 
on  a  footing  of  equality,  is  favorable.  The  voice  of  equity,  and  the  general  rule 
of  contracts,  require  that  the  conditions  between  the  parties  should  be  equal. 

For  the  same  reason,  every  thing  that  is  not  for  the  common  advantage — 
every  thing  that  tends  to  destroy  the  equality  of  a  contract — every  thing  that 
burthens  only  one  of  the  parties,  or  that  burthens  one  more  than  the  other,  is 
odious.  In  a  treaty  of  strict  friendship,  union,  and  alliance,  every  thing  which, 
without  being  burthensome  to  any  of  the  parties,  tends  to  the  common  advan- 
tage of  the  confederacy,  and  to  draw  the  bonds  of  union  closer,  is  favorable. 

In  unequal  treaties,  and  especially  in  unequal  alliances,  all  the  clauses  cf 
inequality,  and  principally  those  that  burthen  the  inferior  ally,  are  odious. 
Upon  this  principle, — that  we  ought,  in  case  of  doubt,  to  extend  what  leads  to 
equality,  and  restrict  what  destroys  it, — is  founded  that  well  known  rule  Incom- 
moda  vitantis  melior  quam  commoda  petentis  est  causa :  The  party  who  endeavors 
to  avoid  a  loss,  has  a  better  cause  to  support  than  he  who  aims  at  obtaining  an 
advantage. 

All  those  things  which,  without  proving  too  burthensome  to  any  one  in  par- 
ticular, are  useful  and  salutary  to  human  society,  are  to  be  ranked  in  the  class 
of  favorable  things  ;  for  a  nation  is  already  under  a  natural  obligation  with  re- 
spect to  things  of  this  natnre. 

On  the  other  hand,  let  us  consider  as  odious  every  thing  that  is,  in  its  own 
nature,  rather  injurious  than  useful  to  mankind.  Those  things  which  have  a  tend- 
ency to  promote  peace  are  favorable ;  those  that  lead  to  war  are  odious. 

Every  thing  that  contains  a  penalty  is  odious.  With  respect  to  the  laws, 
it  is  universally  agreed  that,  in  case  of  doubt,  the  judge  ought  to  incline  to  the 
merciful  side,  and  that  it  is  indisputably  better  to  suifer  a  guilty  person  to  es- 
cape. Penal  clauses  in  treaties  lay  a  burthen  upon  one  of  the  parties  :  they 
are,  therefore,  odious. 

Whatever  tends  to  render  a  deed  void  and  ineffectual,  either  in  the  whole  or 
in  part,  and  consequently  whatever  introduces  any  change  in  things  already 
agreed  upon,  is  odious ;  for  men  treat  together  with  a  view  to  their  common 
benefit;  and  if  I  enjoy  any  particular  advantage,  acquired  by  a  lawful  contract, 
I  must  not  be  deprived  of  it  except  by  my  own  renunciation. 

Whatever  tends  to  change  the  present  state  of  things,  is  also  to  be  ranked 


240  VATTEL'S   RULES  OF  CONSTRUCTION. 

in  the  class  of  odious  things ;  for  the  proprietor  cannot  be  deprived  of  his  right 
except  so  far,  precisely,  as  he  relinquishes  it  on  his  part ;  and  in  case  of  doubt, 
the  presumption  is  in  favor  of  the  possessor. 

Finally,  there  are  things  which  are  at  once  of  a  favorable  or  odious  nature, 
according  to  the  point  of  view  in  which  they  are  considered.  Whatever  dero- 
gates from  treaties,  or  changes  the  state  of  things,  is  odious ;  but  if  it  is  con- 
ducive to  peace,  it  is,  in  that  particular,  favorable.  A  degree  of  of  odium  al- 
ways attaches  to  penalties ;  they  may,  however,  be  viewed  in  a  favorable  light, 
on  those  occasions  when  they  are  particularly  necessary  for  the  safety  of  society, 

When  there  is  question  of  interpreting  things  of  this  nature,  we  ought  to 
consider  whether  what  is  favorable  in  them  greatly  exceeds  what  appears  odious 
— whether  the  advantage  that  arises  from  their  being  extended  to  the  utmost 
latitude  of  which  the  terms  are  susceptible,  will  materially  outweigh  the  severe 
and  odious  circumstances  attending  them ;  and  if  that  is  the  case  they  are  to  be 
ranked  in  the  class  of  favorable  things.  Thus,  an  inconsiderable  change  in  the 
state  of  things,  or  in  conventions,  is  reckoned  as  nothing  when  it  procures  the 
inestimable  blessings  of  peace.  In  the  same  manner,  penal  laws  may  be  inter- 
preted in  their  most  extensive  meaning,  on  critical  occasions,  when  such  an  in- 
stance of  severity  becomes  necessary  to  the  safety  of  the  state. 

1.  When  the  question  relates  to  things  favorable,  we  ought  to  give  the 
terms  the  utmost  latitude  of  which  they  are  susceptible  according  to  the  common 
usage  of  the  laguage ;  and  if  a  term  has  more  than  one  signification,  the  most 
extensive  meaning  is  to  be  preferred  ;  for  equity  ought  to  be  the  rule  of  con- 
duct with  all  mankind,  wherever  a  perfect  right  is  not  exactly  determined  and 
known  in  its  precise  extent.  When  the  Legislature  or  the  contracting  parties 
have  not  expressed  their  will  in  terms  that  are  precise  and  perfectly  determinate, 
it  is  to  be  presumed  that  they  intended  what  is  most  equitable. 

Thus,  Cicero,  in  pleading  the  cause  of  Cascina,  justly  maintains  that  the 
interlocutory  decree  ordaining  "  that  the  person  expelled  from  his  inheritance  be 
reinstated  in  the  possession,"  should  be  understood  as  extending  to  the  man  who 
has  been  forcibly  prevented  from  entering  upon  it;  and  the  Digest  decides  in 
the  same  manner. 

In  questions  relating  to  favorable  things,  all  terms  of  art  are  to  be  inter- 
preted in  the  fullest  latitude  of  which  they  are  susceptible  not  only  in  common 
usage,  but  also  as  technical  terms,  if  the  person  speaking  understands  the  art  to 
which  those  terms  belong,  or  conducts  himself  by  the  advice  of  men  who  under- 
stand that  art. 

But  we  ought  not,  from  the  single  reason  that  a  thing  is  favorable,  to  take 
the  terms  in  an  improper  signification  :  this  is  not  allowable,  except  when  neces- 
sary in  order  to  avoid  absurdity,  injustice,  or  the  nullity  of  the  instrument,  as 
is  practiced  on  every  subject ;  for  we  ought  to  take  the  terms  of  a  deed  in  their 
proper  sense,  conformably  to  their  custom,  unless  we  have  very  strong  reasons 
for  deviating  from  it  (§  271). 

Though  a  thing  appears  favorable  when  viewed  in  one  particular  light,  yet 
where  the  proper  meaning  of  the  terms  would,  if  taken  in  its  utmost  latitude, 
lead  to  absurdity  or  injustice,  their  signification  must  be  restricted  according  to 
the  rules  given  above  (§  293,  294).  For  here,  in  this  particular  case,  the  thing 
becomes  of  a  mixed  nature,  and  even  such  as  ought  to  be  ranked  in  the  class  of 
odious  things. 

For  the  same  reason,  although  neither  absurdity  nor  injustice  results  from 
the  proper  meaning  of  the  terms,  if  nevertheless  manifest  equity  or  a  great  com- 
mon advantage  requires  their  restriction,  we  ought  to  adhere  to  the  most  limited 
sense  which  the  proper  signification  will  admit,  even  in  an  affair  that  appears 
favorable  in  its  own  nature — because  here  also  the  thing  is  of  a  mixed  kind,  and 
ought,  in  this  particular  case,  to  be  esteemed  odious. 


VATTEL'3    RULES  OF   CONSTRUCTION.  241 

Since  odious  things  are  those  whose  restriction  tends  more  certainly  to 
equity  than  their  extension,  and  since  we  ought  to  pursue  that  line  which  is 
most  conformable  to  equity,  when  the  will  of  the  Legislature  or  of  the  contract- 
ing parties  is  not  exactly  determined  and  precisely  known, — we  should,  when 
there  is  question  of  odious  things,  interpret  the  terms  in  the  most  limited  sense ; 
we  may  even  to  a  certain  degree  adopt  a  figurative  meaning,  in  order  to  avert 
the  oppressive  consequences  of  the  proper  and  literal  sense,  or  any  thing  of  an 
odious  nature  which  it  would  involve ;  for  we  are  to  favor  equity,  and  do  away 
every  thing  odious,  so  far  as  that  can  be  accomplished  x^thout  going  in  direct 
opposition  to  the  tenor  of  the  instrument  or  visibly  wresting  the  text. 

Now,  neither  the  limited  nor  even  the  figurative  sense  offers  any  violence  to 
the  text.  It  is  said  in  a  treaty  that  one  of  the  allies  shall  assist  the  other  with  a 
certain  number  of  troops,  at  his  own  expense,  and  that  the  latter  shall  furnish 
the  same  number  of  auxiliary  troops  at  the  expense  of  the  party  to  whom  they 
are  sent :  there  is  something  odious  in  the  engagement  of  the  former  ally,  since 
he  is  subject  to  a  greater  burden  than  the  other;  but  the  terms  being  clear  and 
and  express,  there  is  no  room  for  any  restrictive  interpretation.  But  if  it  were 
stipulated  in  this  treaty,  that  one  of  the  allies  shall  furnish  a  body  of  ten  thou- 
sand men,  and  the  other  only  of  five  thousand,  without  mentioning  the  expense, 
it  ought  to  be  understood  that  the  auxiliary  troops  shall  be  supported  at  the 
expense  of  the  ally  to  whose  assistance  they  are  sent;  this  interpretation  being 
necessary,  in  order  that  the  inequality  between  the  contracting  powers  may  not 
be  carried  too  far. 

Let  us  conclude  this  subject  of  interpretation  with  what  relates  to  the  collis- 
ion or  opposition  of  laws  or  treaties.  We  do  not  here  speak  of  the  collision  of 
a  treaty  with  the  law  of  nature  :  the  latter  is  unquestionably  paramount.  There 
is  a  collision  or  opposition  between  two  laws,  two  promises,  or  two  treaties, 
when  a  case  occurs  where  it  is  impossible  to  fulfil  both  at  the  same  time,  though 
otherwise  the  laws  or  treaties  in  question  are  not  contradictory,  and  may  be  both 
fulfilled  under  different  circumstances. 

They  are  considered  as  contradictory  in  this  particular  case,  and  it  is  re- 
quired to  show  which  deserves  the  preference,  or  to  which  an  exception  ought 
to  be  made  on  the  occasion.  In  order  to  guard  against  all  mistakes  in  the  busi- 
ness, and  to  make  the  exception  conformably  to  reason  and  justice,  we  should 
observe  the  following  rules : — 

1.  In  all  cases  where  what  is  barely  permitted  is  found  incompatible  with 
what  is  positively  prescribed,  the  latter  claims  a  preference ;    for  the  mere  per- 
mission imposes  no  obligation  to  do  or  not  to  do.  What  is  permitted  is  left  to  our 
own  option :    we  are  at  liberty  either  to  do  or  to  forbear  to  do  it.  But  we  have 
not  the  same  liberty  with  respect  to  what  is  prescribed :    we  are  obliged  to  do 
that.     Nor  can  the  bare  permission  in  the  former  case  interfere  with  the  dis- 
charge of  our  obligation  in  the  matter ;  but,  on  the  contrary,  that  which  was 
before  permitted  in  general  ceases  to  be  so  in  this  particular  instance,  where 
we  cannot  take  advantage  of  the  permission  without  violating  a  positive  duty. 

2.  In  the  same  manner,  the  law  or  treaty  which  permits  ought  to  give  way 
to  the  law  or  treaty  which  forbids;    for  the  prohibition  must  be  ^obeyed,  and 
what  was,  in  its  own  nature  or  in  general,  permitted,  must  not  be  attempted 
when  it  cannot  be  done  without  contravening  a  prohibition  ;  the  permission,  in 
that  case,  ceases  to  be  available. 

3.  All  circumstances  being  otherwise  equal,  the  law  or  the  treaty  which  or- 
dains gives  way  to  the  law  or  the  treaty  which  forbids.     I  say  "  all  circum- 
stances being  otherwise  equal,"  for  many  other  reasons  may  occur  which  will 
authorize  the  exception  being  made  to  the  prohibitory  law  or  tre"aty.     The 
rules  are  general :  each  relates  to  an  abstract  idea,  and  shows  what  follows 
from  the  idea  without  derogation  to  the  other  rules.     Upon  this  footing  it  is 

16 


242  VATTEL'S   RULES   OF  CONSTRUCTION. 

evident  that,  in  general,  if  we  cannot  obey  an  injunctive  law  without  violating 
a  prohibitory  one,  we  should  abstain  from  fulfilling  the  former,  for  the  prohibi- 
tion is  absolute  in  itself,  whereas  every  precept,  every  injunction,  is  in  its  own 
nature  conditional,  and  supposes  the  power,  or  a  favorable  opportunity,  of  do- 
ing what  is  prescribed.  Now,  when  that  cannot  be  accomplished  without  con- 
travening a  prohibition,  the  opportunity  is  wanting,  and  this  collision  of  laws 
produces  a  moral  impossibility  of  acting ;  for  what  is  prescribed  in  general,  is 
no  longer  so  in  the  case  where  it  cannot  be  done  without  committing  an  ac- 
tion that  is  forbidden. 

Our  meaning  wifl  be  better  explained  by  an  example.  It  is  expressly  for- 
bidden, for  reasons  to  me  known,  to  pass  through  a  certain  place  under  any 
pretense  whatsoever.  I  am  ordered  to  carry  a  message.  I  find  every  other 
avenue  shut ;  I  therefore  turn  back,  rather  than  take  any  message  over  that 
ground,  which  is  so  strictly  forbidden.  But  if  the  prohibition  be  only  a  general 
one,  with  a  view  to  prevent  any  injury  being  done  to  the  productions  of  the  soil, 
it  is  easy  for  me  to  judge,  that  the  orders  with  which  I  am  charged  ought  to 
form  an  exception. 

4.  The  dates  of  laws  or  treaties  furnish  new  reason  for  establishing  the  ex- 
ception in  cases  of  collision.     If  the  collision  happen  between  two  affirmative 
laws  or  two  affirmative  treaties,  concluded  between  the  same  persons  or  the 
same  states,  that  which  is  of  a  more  recent  date  claims  preference  over  the  older 
one  ;  for  it  is  evident  that,  since  both  laws  or  both  treaties  have  emanated  from 
the  same  power,  the  subsequent  act  was  capable  of  derogating  from  the  former. 
But  still,  this  is  upon  the  supposition  of  circumstances  being  in  other  respects 
equal.     If  there  be  a  collision  between  two  treaties  made  with  two  different 
powers,  the  more  ancient  claims  the  preference  ;  for  no  engagement  of  a  con- 
trary tenor  could  be  contracted  in  the  subsequent  treaty.     And  if  this  latter 
be  found  in  any  latter  case,  incompatible  with  that  of  more  ancient  date,  its  exe- 
cution is  considered  as  impossible,  because  the  person  promising  had  not  the 
power  of  acting  contrary  to  his  antecedent  engagements. 

5.  Of  two  laws  or  two  conventions,  we  ought  (all  other  circumstances  be- 
ing equal)  to  prefer  the  one  which  is  less  general,  and  which  approaches  nearer 
to  the  point  in  question  ;   because  special  matter  admits  of  fewer  exceptions 
than  that  which  is  general.     It  is  enjoined  with  great  precision,  and  appears  to 
have  been  more  pointedly  intended.     Let  us  make  use  of  the  following  example 
from   Puffendorf.     One  law   forbids  us  to  appear  in  public  with  arms  on  holi- 
days ;    another  law  commands  us  to  turn  out  under  arms,  and  repair  to  our 
posts  as  soon  as  we  hear  the  sound  of  the  alarm  bell.     The  bell  is  rung  on  a 
holiday.     In  such  case  we  must  obey  the  latter  of  the  two  laws,  which  creates 
an  exception  to  the  former. 

6.  What  will  not  admit  of  delay  is  to  be  preferred  to  what  may  be  done  at 
any  other  time;    for  this  is  the  mode  to  reconcile  every  thing  and  fulfill  both 
obligations.     Whereas,  if  we  gave  the  preference  to  the  one  which  might  be 
fulfilled  at  another  time,  we  would  unnecessarily  reduce  ourselves  to  the  alterna- 
tive of  failing  in  our  observance  of  the  other. 

7.  When  two  duties  stand  in  competition,  that  one  which  is  the  more  consid- 
erable, the  more  praiseworthy,  and  productive  of  the  greater  utility,  is  entitled 
to  the  preference.     This  rule  has  no  need  of  proof.     But  as  it  relates  to  duties 
that  are  equally   in  our  power,  and,  as  it  were,  at  our  option,  we  should  care- 
fully guard  against  the  erroneous  application  of  it  to  two  duties  which  do  not 
really  stand  in  competition,  but  of  which  the  one  absolutely  precludes  the 
other.     For  instance,  it  is  a  more  praiseworthy  deed  to  defend  one  nation 
against  an'unjust  aggressor,  than  to  assist  another  in  an  offensive  war.     But  if 
the  latter  be  the  more  ancient  ally,  we  are  not  at  liberty  to  refuse  her  our  as- 
sistance and  give  it  to  the  former,  for  we  stand  pre-engaged.     There  is  not, 


DOMAT'S  RULES.  243 

strictly  speaking,  any  competition  between  these  two  duties — they  do  not  lie 
at  our  option;  the  prior  engagement  renders  the  second  duty,  for  the  present, 
impracticable.  However,  if  there  were  question  of  preserving  a  new  ally  from 
certain  ruin,  and  that  the  more  ancient  ally  were  not  reduced  to  the  same  ex- 
tremity, this  would  be  the  case  to  which  the  foregoing  rule  should  be  applied. 

As  to  what  relates  to  laws  in  particular,  the  preference  is  undoubtedly  to  be 
given  to  the  more  important  and  necessary  ones.  This  is  the  grand  rule  to  be 
observed  whenever  they  are  found  to  clash  with  each  other.  It  is  the  rule 
which  claims  the  greatest  attention,  and  is  therefore  placed  by  Cicero  at  the 
head  of  all  the  rules  he  lays  down  on  the  subject.  It  is  counteracting  the  gen- 
eral aim  of  the  Legislature,  and  the  great  end  of  the  laws,  to  neglect  one  of 
great  importance,  under  pretense  of  observing  another  which  is  less  necessary 
and  of  inferior  consequence.  In  fact,  such  conduct  is  criminal ;  for  a  lesser  good, 
if  it  exclude  a  greater,  assumes  the  nature  of  an  evil. 

8.  If  we  cannot  acquit  ourselves,  at  the  same  time,  of  two  things  promised 
to  the  same  person,  it  rests  with  him  to  choose  which  of  the  two  we  are  to  per- 
form ;  for  he  may  dispense  with  the  other  on  this  particular  occasion,  in  which 
case  there  will  no  longer  be  any  collision  of  duties.     But  if  we  cannot  obtain  a 
knowledge  of  his  will,  we  are  to  presume  that  the  more  important  one  is  his 
choice,  and  we  should,  of  course,  give  that  preference.     And,  in  case  of  doubt, 
we  should  perform  the  one  to  which  we  are  the  more  strongly  bound ;  it  being 
presumable  that  he  chose  to  bind  us  more  strongly  to  that  in  which  he  is  more 
deeply  interested. 

9.  Since  the  stronger  obligation  claims  a  preference  over  the  weaker,  if  a 
treaty  that  has  been  confirmed  by  an  oath  happens  to  clash  with  another  treaty 
that  has  not  been  sworn  to — all  circumstances  being  in  other  respects  equal — 
the  preference  is  to  be  given  to  the  former  ;  because  the  oath  adds  a  new  force  to 
the  obligation.     But  as  it  makes  no  change  in  the  nature  of  treaties,  it  cannot, 
for  instance,  entitle  a  new  ally  to  a  preference  over  a  more  ancient  ally  whose 
treaty  has  not  been  confirmed  by  oath. 

For  the  same  reason,  and  all  circumstances  being  in  other  respects  equal, 
what  is  enjoined  under  a  penalty,  claims  a  preference  over  that  which  is  not 
enforced  by  one,  and  what  is  enjoined  under  a  greater  penalty,  over  that  which 
is  enforced  by  a  lesser  ;  for  the  penal  sanction  and  convention  gave  additional 
force  to  the  obligation.  They  prove  that  the  object  in  question  was  more  ear- 
nestly desired,  and  the  more  so  in  proportion  as  the  penalty  is  more  or  less 
severe. 

DOMAT'S    RULES. 

The  following  extracts  are  taken,  and  very  freely  translated,  from  Domat's 
Loix  Civiles,  Liv.  Prel.  des  Regies  du  Droit  en  General,  tit.  I,  sec.  II.  In  order 
to  understand  them,  it  is  necessary  to  bear  in  mind  the  author's  distinction 
between  natural  and  arbitrary  laws.  He  says,  Liv.  Prel.  lit.  I,  Sect.  I,  Sec.  2,, 
— "  Laws  or  rules  are  of  two  sorts  ;  the  one,  laws  of  natural  right  or  equity, 
and  the  other  positive,  human,  or  arbitrary  laws  :  thus  the  rule  that  a  gift  may 
be  revoked  on  the  ground  of  the  ingratitude  of  the  donee,  is  a  rule  of  natural 
law  ;  the  rule  that  gifts  inter  vivos  must  be  recorded,  is  a  rule  of  positive  or 
arbitrary  law."  Without  undertaking  to  vindicate  or  to  criticise  this  classifica- 
tion, we  proceed  to  Domat's  rules  for  the  application  and  interpretation  of  laws. 
The  illustrations  are  in  some  cases  omitted,  both  because  they  are  not  always 
clearly  intelligible  to  modern  jurisconsults,  and  because  the  mind  will  very 
readily  suggest  others  drawn  from  our  own  law. 

SEC.  1.  All  laws,  whethe1*  natural  or  arbitrary,  are  intended  to  produce  re- 


244  DOMAT'3   RULES. 

suits  conformable  to  that  general  idea  of  justice  in  which  they  originate.  Con- 
sequently, their  application  must  be  governed  by  the  demands  of  this  general 
spirit  of  justice  ;  or  in  regard  to  natural  laws  by  equity,  and  in  regard  to  pos- 
itive or  arbitrary  laws  by  the  intention  of  the  legislator.  In  this  distinction 
and  discrimination,  the  science  of  law  mainly  consists. 

SEC.  2.  If  a  rule  of  natural  justice  is  applied  to  a  case  that  it  apparently 
embraces,  and  the  result  is  contrary  to  equity,  we  are  bound  to  conclude  that 
the  rule  is  improperly  applied,  and  that  the  case  should  fall  under  some  other 
law. 

SEC.  3.  If  an  arbitrary  or  positive  rule  is  applied  to  a  case  which  it  appar- 
ently embraces,  and  the  result  is  contrary  to  the  intent  of  the  legislator,  the 
rule  should  not  be  applied  to  the  case. 

SEC.  4.  But  we  must  not  consider  as  unjust  and  repugnant  to  equity,  or  to 
the  legislator's  intention,  those  decisions  which  appear  rigorous  and  severe, 
where  it  is  evident  that  rigor  or  severity  is  the  essential  characteristic  of  the 
law  in  question,  and  that  it  could  not  be  mitigated  without  impairing  its  effect ; 
so  in  regard  to  the  formalities  prescribed  relating  to  the  execution  of  wills,  the 
severity  and  arbitrary  character  of  the  rule  which  annuls  all  wills  where  these 
formalities  are  neglected,  is  in  those  cases  an  indispensable  part  of  the  law. 

SEC.  5.  If,  however,  the  severity  of  a  law  is  not  the  necessary  and  indispens- 
able part  of  it,  but  it  can  be  carried  into  effect  by  a  milder  interpretation  and 
one  more  conformable  to  equity  and  natural  justice,  then  this  is  to  be  preferred 
to  the  strict  and  harsh  construction. 

SEC.  6.  It  follows  from  the  preceding  rules,  that  we  cannot  declare  as  a  fixed 
and  invariable  rule,  either  that  the  strictness  of  law  is  to  be  followed  against  a 
more  equitable  interpretation,  or  the  reverse.  Rigor  becomes  injustice  when 
the  law  will  bear  an  equitable  interpretation  ;  rigor  should  be  practiced  when 
an  equitable  interpretation  would  defeat  the  law.  Thus  rigor  or  strictness  is 
cither  an  unjust  and  odious  severity,  contrary  to  the  spirit  of  the  law,  or  it  fur- 
nishes a  just  but  inflexible  rule.  These  two  ideas  are  never  to  be  con- 
founded ;  and  the  strict  or  the  equitable  construction  ought  to  be  adhered  to  ac- 
cording to  the  rules  here  given. 

SEC.  7.  It  is  never  a  matter  of  indifference  whether  we  apply  a  strict  or  a 
liberal  construction.  In  each  case  we  are  to  inquire  whether  the  rule  in  ques- 
tion calls  for  a  strict  interpretation  or  will  bear  a  liberal  one,  and  decide  ac- 
cordingly. 

SEC.  8.  Although  the  strictness  of  law  appears  at  first  sight  opposed  to 
equity,  it  is  nevertheless  true  that  where  it  ought  to  be  applied  it  is  only  on 
account  of  its  inherent  justice.  What  is  equitable  cannot  be  contrary  to  jus- 
tice ;  and  so  what  is  just  cannot  be  contrary  to  equity. 

SEC.  9.  The  obscurities,  ambiguities,  and  other  defects  of  expression,  which 
may  render  the  meaning  of  a  law  doubtful,  and  all  other  difficulties  in  its  con- 
struction and  application,  should  be  resolved  by  the  natural  sense  of  the  lan- 
guage, according  to  the  nature  of  the  subject,  so  as  if  possible  at  once  to  con- 
form to  the  intent  of  the  legislator  and  to  equity.  This  is  to  be  arrived  at  by 
the  different  consideration  of  the  nature  of  the  law,  its  object,  its  connection 
with  other  laws,  the  exceptions  to  which  it  may  be  subject,  and  other  similar 
•considerations. 

SEC.  10.  To  arrive  at  the  meaning  of  a  law,  we  are  to  weigh  its  terms  and 
examine  its  preamble,  if  there  be  one,  in  order  to  judge  of  its  provisions  by  its 
object  and  the  whole  context,  and  not  to  limit  its  interpretation  to  what  would 
appear  different  from  its  intention,  either  in  a  single  portion  of  the  law,  or  in 
a  single  defective  expression.  We  must  prefer  the  evident  meaning  of  the 
whole  law,  to  the  inconsistent  meaning  of  a  defective  expression. 

SEC.  11.  If  in  any  law,  we  find  the  omission  of  something  essential  to  it, 


DOMAT'S   RULES.  245 

or  which  is  a  necessary  result  of  its  provisions  and  requisite  to  give  the  law  its 
full  effect,  we  may  supply  what  is  wanting  but  not  expressed,  and  extend  the 
law  to  what  it  was  manifestly  intended  to  embrace  but  in  its  terms  does  not 
include. 

SEC.  12.  If  the  language  of  a  law  clearly  expresses  its  meaning  and  inten- 
tion, that  intention  must  be  carried  out ;  but  if  the  true  sense  of  the  law  cannot 
be  arrived  at  by  the  interpretation  which  may  be  made  according  to  the  rules 
here  given,  or  the  meaning  be  clear  and  inconvenience  appear  to  result,  then 
we  must  have  recourse  to  the  sovereign  to  interpret,  to  declare,  or  modify  the 
law. 

SEC.  13.  If  the  provisions  of  a  law  are  clear,  but  its  object  not  understood, 
and  in  its  application  inconveniences  appear  to  result,  we  are  bound  to  pre- 
sume that  the  law  is  useful  and  just ;  and  its  meaning  and  its  authority  are  to 
be  preferred  to  mere  abstract  reasoning.  Otherwise  many  useful  and  well- 
contrived  rules  would  be  overturned  on  grounds  of  alleged  equity  or  ingenious 
argument. 

SEC.  14.  Laws  which  favor  what  public  utility,  humanity,  religion,  freedom 
of  intercourse  (liberte  des  conventions),  and  other  similar  interests  regard  favor- 
ably, as  well  as  those  intended  to  favor  particular  individuals,  ought  to  be  inter- 
preted with  all  the  liberality  to  which  these  interests  are  justly  entitled,  in  an 
equitable  point  of  view,  and  ought  not  to  be  interpreted  severely,  nor  be  applied 
in  a  manner  calculated  to  prejudice  the  persons  intended  to  be  favored. 

SEC.  15.  Laws  which  restrain  natural  liberty,  as  those  which  prohibit  what 
is  not  of  itself  illicit,  or  which  derogate  otherwise  from  common  right ;  laws 
fixing  the  punishment  of  crimes  and  offences,  or  penalties  in  matters  of  a  civil 
nature  which  prescribe  formalities  that  seem  severe,  those  which  permit  parents 
to  disinherit  children,  and  others  of  a  similar  character, — ought  to  be  so  inter- 
preted as  not  to  extend  their  provisions  to  cases  which  they  do  not  embrace; 
and,  on  the  contrary,  they  should  receive  all  practical  mitigation  of  equity  and 
humanity. 

SEC.  16.  If  any  law  or  custom  is  established  for  particular  reasons,  contrary 
to  other  rules  or  to  common  right,  it  ought  not  to  be  applied  except  to  those 
cases  for  which  it  is  expressly  intended. 

SEC.  17.  The  grants  and  gifts  of  sovereigns  are  to  be  favorably  regarded,  and 
to  have  that  extension  to  which  they  are  entitled  from  the  natural  presumption 
of  princely  liberality,  provided,  however,  that  they  are  not  to  be  so  liberally 
construed  as  to  injure  other  individuals. 

SEC.  18.  If  laws  of  doubtful  meaning  be  connected  with  or  related  to  other 
laws  which  throw  any  light  on  their  purport,  the  interpretation  thus  derived  is 
the  one  that  should  be  adopted. 

SEC.  19.  If  the  doubts  or  difficulties  in  regard  to  the  interpretation  of  a  law 
or  a  custom  are  solved  by  an  old  usage  which  has  fixed  the  meanings,  and  which 
is  supported  by  a  uniform  series  of  adjudications,  we  should  adhere  to  the  usage, 
which  is  the  best  interpreter  of  laws. 

SEC.  20.  In  case  any  provinces  or  districts  are  without  certain  rules  to  de- 
cide difficulties  in  regard  to  matters  which  are  there  governed  by  usage,  if  these 
difficulties  are  not  determined  by  natural  justice,  or  by  written  law,  but  depend 
on  custom  and  usage,  we  ought  to  adopt  the  principles  which  result  from  the 
customs  or  usages  of  the  province  or  district. 

SEC.  21.  All  laws  necessarily  bear  with  them  all  the  powers  or  incidents 
necessary  to  fully  carry  out  their  intention.  Thus,  as  the  law  permits  boys  to 
contract  marriage  at  the  age  of  14,  and  girls  at  the  age  of  12,  it  necessarily 
results  from  this  law  that  those  who  marry  can,  although  infants  and  not  of 
full  age,  bind  themselves  in  regard  to  the  settlement,  community  of  goods,  and 
the  like. 


246  LIBBER'S  RULES. 

SEC.  22.  In  laws  which  confer  power,  the  greater  authority  implies  the  less. 
Thus,  those  who  have  the  right  to  give  their  property,  have,  with  still  greater 
reason,  the  right  to  sell  it. 

SEC.  23.  In  laws  which  prohibit  acts,  the  lesser  prohibition  implies  the 
greater.  Thus,  spendthrifts  who  are  forbidden  to  manage  or  control  their  prop- 
erty, a  fortiori  cannot  alienate  or  transfer  it. 

SEC.  24.  The  implications  spoken  of  in  the  two  last  sections  are  to  be  re- 
stricted to  subjects  of  the  same  nature  as  those  to  which  the  law  applies,  or  to 
which  it  ought  to  apply,  according  to  the  preceding  rules.  Thus,  the  liberty 
that  a  minor  adult  enjoys  to  make  a  donatio  causa  mortis  should  not  be  extended 
so  as  to  sustain  a  gift  inter  vivos. 

SEC.  25.  If  a  law  grants  an  amnesty,  or  pardon  for  past  offences,  it  is  to  be 
understood  as  prohibiting  similar  acts  for  the  future.  Cum  lex  in  preteritum 
quid  indulget,  in  futurum  vetat. — L.  22,  Ff.  de  Legibus. 

SEC.  26.  If  a  right  be  vested  in  a  person  by  reason  of  a  law,  it  is  of  no  con- 
sequence whether  the  person  s6  vested  be  cognizant  or  ignorant  of  the  law,  or 
whether  he  know  or  be  ignorant  of  the  fact  on  which  the  vesting  of  the  right  de- 
pends. Thus,  the  son  is  heir  to  his  father,  though  he  be  both  ignorant  of  the 
law  of  succession  and  of  his  father's  death. 

SEC.  27.  Persons  competent  in  law  to  act  may  waive  any  benefit  or  priv- 
ilege created  by  law  in  their  favor.  Thus,  one  of  full  years  may  renounce  an 
inheritance  devolved  on  him  by  law.  But  this  liberty  of  renunciation  or 
waiver  does  not  extend  to  the  rights  of  third  persons,  nor  to  those  cases  in 
which  the  waiver  would  be  contrary  to  equity,  or  to  good  morals,  or  to  any 
other  law. 

SEC.  28.  The  rules  of  law  cannot  be  modified  by  any  private  contract  or 
agreement.  Jus  publicum  privatorum  pactis  mutari  non  potest. 

Professor  LIEBER,  in  his  work  on  Legal  and  Political  Hermeneutics,  gives 
the  following  rules  for  interpretation  and  construction.  I  have,  supra,  p.  191, 
referred  to  the  distinctions  drawn  by  him  between  these  two  operations  of  the 
mind,  and  the  classifications  which  he  adopts. 

1.  A  sentence,  or  form  of  words,  can  have  but  one  true  meaning. 

2.  There  can  be  no  sound  interpretation  without  good  faith  and  common 
sense. 

3.  Words  are,  therefore,  to  be  taken  as  the  utterer  probably  meant  them 
to  be  taken.     In  doubtful  cases,  therefore,  we  take  the  customary  signification, 
rather  than  the  grammatical  or  classical ;  the  technical,  rather  than  the  etymo- 
logical— verba  artis  ex  arte — tropes  as  tropes.     In  general,  the  words  are  taken 
in  that  meaning  which  agrees  most  with  the  character  of  both  the  text  and  the 
utterer. 

4.  The  particular  and  inferior  cannot  defeat  the  general  and  superior. 

5.  The  exception  is  founded  upon  the  superior. 

6.  That  which  is  probable,  fair,  and  customary,  is  preferable  to  the  improb- 
able, unfair,  and  unusual. 

7.  We  follow  special  rules,  given  by  proper  authority. 

8.  We  endeavor  to  derive  assistance  from  that  which  is  more  near,  before 
proceeding  to  that  which  is  less  so. 

9.  Interpretation  is  not  the  object,  but  a  means;  hence  superior  considera- 
tions may  exist. — Lieber's  Hermeneulics,  p.  120. 

******** 

XVH.  Recapitulating  the  general  principles  of  construction,  we  find  the 
following  to  be  most  essential  points : 


LIBBER'S   RULES.  247 

1.  All  principles  of  interpretation,  if  at  all  applicable  to  construction,  are 
valid  for  the  latter. 

2.  The  main  guide  for  construction  is  analogy,  or  rather  reasoning  by 
parallelism. 

3.  The  aim  and  object  of  an  instrument,  law,  &c.,  are  essential,  if  distinctly 
known,  in  construing  them. 

4.  So  also  may  be  the  causes  of  a  law. 

5.  No  text  imposing  obligations  is  understood  to  demand  impossible  things. 

6.  Privileges  or  favors  are  to  be  construed  so  as  to  be  least  injurious  to  the 
non-privileged,  or  unfavored. 

7.  The  more  the  text  partakes  of  the  nature  of  a  compact,  or  solemn  agree- 
ment, the  closer  ought  to  be  its  construction. 

8.  A  text  imposing  a  performance,  expresses  a  minimum,  if  the  performance 
is  a  sacrifice  to  the  performer ; — the  maximum,  if  it  involves  a  sacrifice  or  suffer- 
ance on  the  side  of  the  other  party. 

9.  The  construction  ought  to  harmonize  with  the  substance  and  general  spirit 
of  the  text. 

10.  The  effects  which  would  result  from  one  or  the  other  construction,  may 
guide  us  in  deciding  which  construction  we  ought  to  adopt. 

11.  The  older  a  law,  or    any  text  containing  regulations  of  our  actions, 
though  given  long  ago,  the  more  extensive  the  construction  must  be  in  certam 
cases. 

12.  Yet  nothing  contributes  more  to  the  substantial  protection  of  individual 
liberty,  than  a  habitually  close  interpretation  and  construction. 

13.  It  is  important  to  ascertain  whether  words  were  used  in  a  definite,  ab- 
solute, and  circumscribed  meaning,  or  in  a  generic,  relative,  or  expansive  char- 
acter. 

14.  Let  the  weak  have  the  benefit  of  a  doubt,  without  defeating  the  general 
object  of  a  law.     Let  mercy  prevail,  if  there  be  real  doubt. 

15.  A  consideration  of  the  entire  text,  or  discourse,  is  necessary  in  order  to 
construe  fairly  and  faithfully. 

16.  Above  all,  be  faithful  in  construction.     Construction  is  the  building  up 
with  given  elements,  not  the  forcing  of  extraneous  matter  into  a  text. — Lieber's 
Hermeneutics,  p.  144. 

******** 

The  author  subsequently  gives  (pp.  167-172)  the  following  as  the  most  gen- 
eral rules  and  principles  applicable  to  all  interpretation : 

1.  The  true  meaning  of  words  can  be  but  one. 

2.  Honest,  faithful,  bonafide  interpretation  is  all-important ;  common  sense 
must  guide  us. 

3.  Words  are  to  be  taken  according  to  their  customary,  not  in  their  original 
or  classical  signification. 

4.  The  signification  of  a  word,  ort  he  meaning  of  a  sentence,  when  dubious, 
is  to  be  gathered  from  the  context,  or  discovered  by  analogy,  or  fair  induction. 
Yet  the  same  word  does  not  always  mean  the  same  in  the  same  discourse  or 
text.     This  would,  in  fact,  militate  with  the  important  rule,  that  we  are  to  take 
words  in  their  natural  sense,  according  to  custom  and  their  connection. 

5.  Words  are  always  understood  as  having  regard  to  the  subject-matter. 

6.  The  causes  which  led  to  the  enactment  of  a  law  are  guides  to  us.     If  one 
interpretation  would  lead  to  absurdity,  the  other  not,  we  must  adopt  the  latter. 
So,  that  interpretation  which  leads  to  the  more  complete  effect  which  the  Legis- 
lature had  in  view,  is  preferable  to  another. 

For  the  above  rules,  see  Blackstone  and  Puffendorf.     As  to  rule  6,  see  Dig. 
L.  50,  tit.  17, 67. 

7.  Two  chief  objects  of  all  government  are  peace  and  security  ;  the  State 


248  LIBBER'S   RULES. 

can  never  be  understood  to  will  anything  immoral,  so  long  as  there  is  any  doubt. 
Laws,  therefore,  cannot  be  construed  as  meaning  anything  against  the  one  or 
the  other.  Security  and  morality  are  the  supreme  law  of  every  land,  whether 
this  be  expressly  acknowledged  or  not. 

8.  The  general  and  superior  prevails  over  the  specific  and  inferior  ;  no  law, 
therefore,  can  be  construed  contrary  to  the  fundamental  law.     If  it  admits  of 
another  construction,  this  must  be  adopted. 

******** 

9.  A  law  contrary  to  the  fundamental  or  primary  law,  may  at  any  time  be 
declared  so,  though  it  has  already  been  acted  upon  ;  for  that  which  was  wrong 
in  the  beginning  cannot  become  valid  in  the  course  of  time.     Dig.  L.  50,  Tit. 

17,24. 

******** 

10.  If,  therefore,  the  law  admits  of  two  interpretations,  that  is  to  be  adopted 
which  is  agreeable  to  the  fundamental  or  primary  law,  though  the  other  may 
have  been  adopted  previously. 

11.  Custom  of  the  country, 'where  the  law  was  made,  supplies  the  deficiency 
of  words. 

12.  In  dubious  cases,  the  fairer  interpretation  is  to  be  adopted.     "  Every- 
where, especially  in  law,  equity  is  to  be  considered." — Dig.  L.  50,  Tit.  17,  90, 
192,  200. 

13.  That  which  is  probable,  or  customary,  is  preferable  to  that  which  is 
less  so,  wherever  obscurity  exists. 

14.  If  two  laws  conflict  with  each  other,  that  must  yield  the  effect  of  which 
is  less  important;  or,  that  is  to  be  adopted  by  the -adoption  of  which  we  ap- 
proach nearest  to  the  probable  or  general  intention  of  the  legislator.     Specific 
rules,  adopted  for  the  protection  of  private  individuals,  must  be  followed. 

******** 

15.  The  more  general  the  character  of  the  law  is,  the  more  we  ought  to  try 
strictly  to  adhere  to  the  precise  expression.     Without  it,  it  would  be  a  waver- 
ing instead  of  a  stable  rule,  and  we  must  presume  that  the  words  have  been  the 
better  weighed.     Many  considerations,  however,  may  exist,  which  would  oblige 
us  to  follow  a  different  course ;    e.  g.,  the  cruelty  of  a  law,  its  antiquity,  and 
consequent  unfitness. 

16.  If  any  doubt  exists  in  penal  laws  or  rules,  they  ought  to  be  construed  in 
favor  of  the  accused  ;  of  course,  "without  injury  to  any  one  else. 

17.  In  cases  of  doubt  between  the  authority  and  an  individual,  the  benefit  of 
the  doubt,  all  other  reasons  being  equal,  ought  to  be  given  to  the  individual, 
not  to  the  authority, — for  the  State  makes  the  laws,  and  the  authority  has  the 
power ;  yet  it  is  subversive  of  all  good  government,  peace,  and  civil  morality, 
if  subtlety  is  allowed  to  defeat  the  wise  object  of  the  law,  or  if  a  morbid  par- 
tiality for  an  evil-doer  guides  the  interpreter. 

18.  The  weak  (hence  the  individual  arraigned  by  the  State)  ought  to  have 
the  benefit  of  doubt ;  doubt  ought  to  be  construed  in  mercy,  not  in  severity. 
A,  law  may  be  rendered  milder,  but  not  more  severe. — Lieber's  Ifermeneutics, 
p.  172. 

Copious  extracts  from  the  writers  on  the  civil  law  in  regard  to  the  subject 
of  this  note,  will  be  found  in  the  12th  chapter  of  Mr.  Smith's  work  on  Statutes. 

Mr.  ROBERT  PHILLIMORE,  in  his  very  able  and  useful  work  upon  Inter- 
national Law,  devotes  a  chapter  (part  v,  chapter  viii)  to  the  subject  of  the 
Interpretation  of  Treaties.  He  arranges  the  principles  and  rules  appertaining 
to  this  subject  under  three  heads. 


SAVIGNY   ON   INTERPRETATION.  249 

Authentic  Interpretation  ;  or,  the  exposition  supplied  by  the  lawgiver  him- 
self. 

Usual ;  or,  that  founded  on  usage  and  precedent. 

Doctrinal ;  or,  that  founded  on  a  scientific  exposition  of  the  terms  of  the  in- 
strument— this  being  subdivided  into,  1.  Grammatical,  and  2.  Logical  Exposi- 
tion. 

The  learned  and  sagacious  SAVIGNY,  in  his  recent  work  on  Contracts,  re- 
marks that,  with  respect  to  agreements,  the  principles  of  interpretation  to  be 
found  in  the  Civil  Law — which  are  substantially  those  of  Vattel  and  Domat — 
are  of  a  very  general  and  superficial  character,  and  scarcely  afford  any  aid, 
beyond  that  which  an  intelligent  and  dispassionate  consideration  of  each  par- 
ticular case  would  furnish.  His  words  are  as  follows  : — 

"  Fur  die  Auslegung  nun  in  Anwendung,  auf  die  meisten  Falle  dieser  letzten 
lassen  sich  durchgreifende  Grundsatze  der  Auslegung  nicht  wohl  aufstellen. 
Auch  sind  die  meisten  Aesserungen  der  Romischen  Juristen  heriiber  von  einem 
sehr  allgemeinen  Character,  und  ziemlich  auf  der  Oberflache  liegend,  so  dasz  sie 
in  zweifelhaften  Fallen  nicht  leicht  welter  fiihren  werden,  als  wohin  die  beson- 
nene  Erwagung  des  einzelnen  Falles  ohnehin  fiihren  musste.  Folgende  Aus- 
spruche  werden  diese  Behauptung  anschaulich  machen,  und  zur  Ueberzeugung 
bringen." — Das  Obligationen  Recht,  ii,  189. 

I  refer  to  this  with  satisfaction,  as  it  goes  to  confirm  what  has  been  said  in 
the  text  as  to  the*practical  utility  of  these  minute  and  precise  Codes  of  Interpre- 
tation. 

See  also  Mr.  Justice  STORY'S  criticisms  on  Vattel's  Rules  of  Interpretation. 
— Story  on  the  Cons.,  vol.  i,  p.  291. 


CHAPTER     VII. 

OF  STRICT  CONSTRUCTION,  AND  OF  LIBERAL  OR  EQUITABLE 
CONSTRUCTION. 

The  Line  Separating  Judicial  Construction  from  Judicial  Legislation. — Strict  Con- 
struction, and  Liberal  or  Equitable  Construction. —  Statutes  when  Strictly  Con- 
strued.— Statutes  Conflicting  with  a  Constitution  or  Fundamental  Law. — Statutes 
Prescribing  Forms  of  Procedure,  Modes  of  Proof  and  of  Practice. — Statutes  of 
Frauds. — Statutes  of  Wills. — Statutes  of  Limitations. — Statutes  in  Derogation  of 
the  Common  Law. — Penal  Statutes. — Revenue  Laws. — Usury  Laws. — Statutes 
Granting  Franchises  and  Corporate  Powers. — Statutes  Granting  Exemptions  from 
General  Burthens. — Statutes  Authorizing  Summary  Judicial  Proceedings. — Stat- 
utes Authorizing  Summary  Administrative  Proceedings.— Statutes  of  Explanation. 
— The  Stamp  Acts. — Statutes  Giving  Costs. — Statutes  when  to  be  Liberally  or 
Equitably  Construed. — Remedial  Statutes. — Equity  of  a  Statute. — When  Statutes 
Treated  as  Directory  merely. — General  Rules. 

I  HAVE  in  the  preceding  chapter,  endeavored  to  state  the 
general  rules  of  construction  with  regard  to  the  means  to  be 
employed,  for  the  purpose  of  solving  doubts  in  regard  to  the 
true  intent  of  a  given  legislative  act.  We  have  now  to  con- 
sider a  very  different  class  of  cases.  There  are,  as  have  been 
already  observed,  many  cases  of  ambiguity  or  irreconcilable 
contradiction,  where  all  aids  fail,  and  the  task  of  arriving  at  the 
intent  of  the  legislator  may  be  said  to  be  hopeless.  Still,  the 
doubt  is  to  be  resolved,  the  case  to  be  decided,  the  statute  to  be 
interpreted  and  applied ;  and  the  functions  of  the  judge  in  these 
cases  necessarily  approach  those  of  the  legislator.  There  are 
again  other  cases  of  great  apparent  hardship,  where  the  statute 
is  on  its  face  sufficiently  intelligible,  but  where  its  provisions 
are  sweeping  and  arbitrary,  and  where  its  literal  operation  and 
application  involve  really  innocent  parties  in  great  suffering 
and,  it  may  be,  remediless  disaster.  Out  of  these  cases  has 
grown  the  idea  already  stated,  that  the  judiciary  have  the  right 
to  make  a  distinction  between  different  statutes,  or  classes  of 
statutes ;  and  that  while  some  are  to  be  strictly  construed  and 


STRICT   AND  LIBERAL    CONSTRUCTION.  251 

rigidly  enforced  according  to  their  letter,  others  are  to  be  liber- 
ally expounded,  and  to  be  molded  and  interpreted  according  to 
judicial  notions  of  policy  or  equity. 

This  branch  of  our  subject  is  one  of  the  most  important  in 
the  whole  range  of  jurisprudence;  for  while  on  the  one  hand  it 
is  proper,  and  indeed  indispensable  to  the  intelligent  adminis- 
tration of  justice,  that  the  judiciary  should,  to  a  certain  extent, 
possess  and  exercise  this  power,  still,  on  the  other,  it  is  one  ex- 
tremely liable  to  abuse;  and,  indeed,  it  has  been  so  much 
abused  as  at  times  almost  to  obliterate  the  important  line  be- 
tween the  judicial  and  legislative  functions.  "  Equitable  con- 
structions," say  the  Supreme  Court  of  Massachusetts,  "  though 
they  may  be  tolerated  in  remedial  and  perhaps  some  other 
statutes,  should  always  be  resorted  to  with  great  caution,  and 
never  extended  to  penal  statutes  or  mere  arbitrary  regulations 
of  matters  of  public  policy.  The  power  of  extending  the  mean- 
ing of  a  statute  beyond  its  words,  and  deciding  by  the  equity 
and  not  the  language,  approaches  so  near  the  power  of  legisla- 
tion that  a  wise  judiciary  will  exercise  it  with  reluctance,  and 
only  in  extraordinary  cases."  * 

*  In  this  case,  the  statute  declared  that  if  substantive  law  in  question  being  the  work  of 

a  citizen  had  an  estate,  which  should  be  ap-  the  legislator,  every  application  made  of  the 

praised   at  a   certain    sum,  and  be  assessed  principle  of  nullification  is  a  contempt,  an  act 

thereon,  he  should  obtain  a  settlement;  and  of  insurrection  against  the  authority  of  his 

it  was  held  that  mere  residence  and  posses-  constitutional  superior.    Condition,  extension, 

sion  of  the   estate  would    not  give  a  settle-  limitation,    modification,    exception,   expres- 

ment,  where   the    appraisement   and  assess-  sions  interconvertible    (expressions  in  effect 

ment  had  not  been  made.    Monson  v.  Chester,  the  same),  by  the  legislator ;  none  at  all  an- 

22  Pick.  385.  nexed,  none  at  any  rate  to  the  effect  in  ques- 

Bentham's  hostility  to  the  usurpations  of  tion.     To  this  declaration  of  the  will  of  the 

the  judiciary,  is  expressed  at  once  with  his  legislator — the  genuine  and  lawful  legislator 

usual  force  of  thought  and  peculiarity  of  Ian-  — the  judge,  by  help  of  the  principle  of  nulli- 

guage ;  he  says,  "  A  statement  of  the  instances  fication,  attaches  exceptions   of  his   own   at 

in   which   the   authority   of  Parliament  has  pleasure.     To  the  extent  of  these  exceptions, 

been,  and  continues  to  be,  trampled  upon  by  the  will  of  the  legislator  is  in  effect  frustrated, 

its  sworn  servants,  might  fill  volumes  upon  the  law  repealed." — Evidence,  vol.   iv,  chap, 

volumes." — Bentham's  Evidence,  vol.  ii,  chap,  xxv,  p.  403. 
xxv,  p.  395.  "  For  thus  it  is  that  on  pretense  of  being 

"  An  equal  degree  of  contempt  for  the  au-  declared,  laws  upon  laws,  laws  fighting  with 
thority  of  the  legislator  is  manifested  by  every  laws,  are  made  throughout  the  manufactory 
application  of  the  principle  of  nullification,  of  common,  that  is,  of  judge-made  law.  That 
On  a  former  occasion,  the  principle  of  nulli-  B.  may  receive  warning  (warning  which  it 
fication  was  considered  in  its  character  of  an  is  neither  designed  or  expected  should  ever 
engine  of  fraud ;  in  respect  of  its  particular  reach  him),  A.  must  first  have  been  consigned 
and  more  immediate  effects  on  each  particular  to  distress  or  ruin.  Gulphs  by  the  side  of 
occasion,  to  the  prejudice  of  the  party  having  gulphs  cover  in  its  whole  expanse;  the  field 
right  on  its  side.  On  the  present  occasion,  of  jurisprudential  law;  nor  can  any  of  them 
the  character  in  which  it  presents  itself  to  take  its  chance  of  being  closed,  till  the  prop- 
view,  is  that  of  an  engine  of  usurpation." —  erty  or  liberty  of  some  involuntary  Curtius 
Evidence,  vol.  iv,  p.  402.  has  been  thrown  into  it." — Evidence,  vol.  ii, 

"  On  the  part  of  the  judge,  the  mass  of  chap,  ii,  p.  28. 


252  GENERAL  RULES. 

I  shall  endeavor  briefly  to  state  what  I  suppose  to  be  the 
true  principles  of  our  law  in  connection  with  this  subject,  and 
then,  by  an  examination  of  the  adjudged  cases,  illustrate  how 
far  the  correct  rule  has  been  observed,  and  how  far  departed 
from. 

The  duty  of  the  Legislature  is  to  make  the  law,  or  a  general 
rule  for  all  cases;  that  of  the  judge,  to  declare  and  apply  the 
law  to  particular  instances.  When  a  case  of  doubt  arises  in 
regard  to  a  statute,  the  first  duty  of  the  judge  is  to  ascertain 
the  meaning  of  the  legislator  who  framed  it,  that  is,  to  construe 
or  to  interpret  the  statute  as  the  legislator  himself  would  have 
done ;  and  so  long  as  by  any  legitimate  means  the  intent  of  the 
legislator  can  be  ascertained,  the  judge  is  not  permitted  to  seek 
any  other  mode  of  solving  the  difficulty.  But  if  the  language 
employed  is  such,  or  for  any  other  reason  the  case  is  such,  that 
the  judge  cannot  pretend  to  say  what  the  meaning  of  the  law- 
giver was,  his  duty  becomes  different. 

The  question  is  still  to  be  decided,  but  he  must  resolve  the 
doubt  on  some  other  principle.  The  judge  then  ceases  to  ex- 
plore and  discover  the  purpose  of  another  mind ;  he  acts  on  the 
case  before  him  by  his  own  intellect,  he  determines  the  ques- 
tion as  he  thinks  it  ought  to  be  determined.  In  doing  this  he 
acts,  truly,  not  as  a  judge,  but  as  a  legislator.  An  attempt  has 
been  made  to  frame  a  rule :  from,  the  ambiguity  of  language  or 
other  causes,  the  attempt  has  failed ;  and  what  the  lawgiver 
has  not  succeeded  in  doing,  the  judge  proceeds  to  do.  But,  as 
I  have  said,  this  proceeding  is  only  legitimate  in  cases  where 
the  effort  to  ascertain  the  intent  of  the  legislator  must  be  aban- 
doned as  hopeless. 

Now,  in  exercising  this  truly  legislative  power,  it  is  evident 
that  two  leading  considerations  will  have  weight.  First,  the 
general  policy  of  a  given  construction  will  be  contended  for ; 
and,  secondly,  the  hardships  of  the  particular  case  will  be  urged. 
Pressed  by  these  arguments,  and  really  embarrassed  by  the 
very  greatness  of  their  power,  the  courts  have  frequently 
attempted  to  define  and  limit  it,  by  declaring  in  what  cases 
statutes  are  to  be  strictly  construed,  and  in  \vhat  to  be  liberally 
interpreted.  Indeed,  in  no  other  sense  than  in  this  which  I 


GENERAL  RULES.  253 

have  here  stated,  can  the  terms  strict  and  liberal  construction 
be  used ;  for  to  admit  as  a  general  thing,  that  statutes  are  to  be 
loosely  or  rigidly  construed  as  the  judges  think  fit,  without 
reference  to  the  intention  of  the  Legislature,  in  cases  where  that 
intention  can  be  arrived  at  in  a  legitimate  way,  is  really  to 
place  all  legislation  in  the  power  of  the  judiciary,  or  in  other 
words,  to  efface  the  line  between  these  two  branches  of  the 
government. 

But  notwithstanding  all  the  efforts  which  have  been  made 
to  set  bounds  to  this  authority,  we  shall  find,  as  might  naturally 
be  supposed,  that  a  power  so  liable  to  abuse  has  often  been 
warped  and  perverted;  and  this  we  shall  better  understand 
when  we  examine  the  adjudged  cases.  We  shall  see  that  the 
exercise  of  the  power  has  not  been  confined  to  its  legitimate 
sphere, — those  cases  where  the  task  of  discovering  the  legisla- 
tive intent  was  hopeless;  but  that  the  judges,  pressed  by  con- 
siderations of  policy  on  the  one  hand  and  of  hardships  on  the 
other,  have  often  entirely  disregarded  all  the  legitimate  modes 
of  discovering  the  meaning  of  the  lawmaker,  and  have  even 
decided  against  that  intention  expressed  as  plainly  as  words 
can  express  it. 

I  suppose  the  true  rules  to  be,  first,  that  the  intention  of* 
the  legislator  is  to  be  learned  from  the  words  he  has  used,  and 
the  other  legitimate  aids  enumerated  in  the  last  chapter ;  second, 
that  if  that  intention  is  expressed  in  a  manner  devoid  of  contra- 
diction and  ambiguity,  there  is  no  room  for  interpretation  or 
construction,  and  the  judiciary  are  not  at  liberty,  on  considera- 
tion* of  policy  or  hardship,  to  depart  from  the  words  of  the 
statute ;  that  they  have  no  right  to  make  exceptions  or  insert 
qualifications,  however  abstract  justice  or  the  justice  of  the  par- 
ticular case  may  seem  to  require  it.  Let  us  now  see  how  the 
matter  stands  upon  authority. 

The  idea  of  an  authority  vested  in  the  judges  to  disregard 
the  letter  of  a  statute,  in  order  in  a  given  case  to  attain  the  ends 
of  justice,  is  familiar  to  the  authors  of  the  civil  law ;  and  by 
them  this  vague  and  undefined  power  is  called  ^Equitas.  Puf- 
fendorff  says,  Circa  rectam  applicationem  sententice  legis  ad 
casus  particulares  in  qua  officium  judicis  vertitur,  diligenter 


254  THE   EQUITY   OF   THE   CIVIL    LAW. 

observanda  quce  communiter  dicitur  cequitas.  Hcec  in  eo  con- 
sistit,  ut  prudenter  declaretur,  casum  aliquem  peculiaribus  vesti- 
tum  circumstantiis  a  legislator e  sub  generali  lege  nonfuisse  com- 
prehensum.  Scepenumero  enim  contingit,  ut  ex  litera  legis  in 
applicatione  ad  casus  speciales  sequatur  absurdum  aliquod,  eo 
quod  legislators  eos  ob  varietatem  ac  multitudinem  perspicere  et 
peculiariter  excipere  non  potuerint.  Cum,  autem,  nemo  prcesu- 
matur  absurda  lege  constituisse,  intelligitur  utique  legislator  tales 
cases  noluisse  comprehendere  ;  ideoque  non  adversatur  legislator i 
judex,  sed  potius  prudenter  voluntatem  ejus  ex  analogia  et  sensu 
cceterarum  legum  colligit,  qui  universalitatem  literce  per  cequita- 
tem  restringit.* 

This  idea  of  a  natural  equity  to  be  observed  in  the  construc- 
tion of  a  statute,  runs  through  all  the  great  authors  of  the  civil 
law ;  and  we  have  also  had  occasion  to  observe  it  in  connection 
with  the  distinction  between  things  odious  and  things  favorable, 
insisted  on  in  the  copious  extracts  from  Vattel,  in  the  last  chapter. 

From  the  civil  the  maxim  was  imported  into  the  common 
law.  Lord  Coke,  partly  speaking  for  himself  and  partly  citing 
Bracton,  says,  "  Equitie  is  a  construction  made  by  the  judge, 
that  cases  out  of  the  letter  of  a  statute,  yet  being  within  the 
same  mischief,  or  cause  of  the  making  of  the  same,  shall  be 
within  the  same  remedie  that  the  statute  provideth ;  and  the 
reason  hereof  is  for  that  the  lawgivers  could  not  possibly  set 
down  all  cases  in  express  terms.  ^Equitas  est  convenientia  re- 
rum  quce  cuncta  cocequiparat,  et  quce  in  paribus  rationibus  paria 
jura  et  judicia  desiderat.  And  againe,  ^Equitas  est  perfects 
qucedam  ratio  quce  jus  scriptum  interpretatur  et  emendat,  nulld 
scripturd  compreliensa^  sed  sol/am  in  verd  ratione  consistens* 
JEquitas  est  quasi  cequalitas.  Bonus  judex  secundum  cequum 
et  bonum  judicat,  et  cequitatem  stricti  juri  prcefert.  Et  jus  re~ 
spicit  cequitatem" f  And  the  proposition,  that  in  construing  a 

*  Puffendorff,  Elem.  Jur.  Univ.  lib.  i,  def.  tension ;  2,  sometimes  by  restriction ;  3,  some- 

xiii,  §  22.  times  by  implication ;  4,  sometimes  a  disjunc- 

f  Coke,  Inst.  24  b.  live  for  a  copulative ;    5,  a  copulative  for  a 

The  rules  of  interpretation  given  by  Lord  disjunctive  ;    6,  the    present    tense    for   the 

Chancellor  Ellesmere  in  the  Postnati  Case  are  future ;  7,  the  future  for  the  present ;  8,  some- 

often  referred  to,  as  exhibiting  the  latitudinary  times  by  equity  out  of  the  reach  of  the  words ; 

ideas  of  construction  that  atone  time  infested  9,  sometimes  words  taken  in  a  contrary  sense  ; 

the  judicial  minds  of  England.  He  says,"Words  10,  sometimes  figuratively  as  continens  pro 

are  taken  and  construed — 1,  sometimes  by  ex-  contento  ;  and  many  other  like."    And  of  all 


THE  EQUITY  OF  THE   COMMON  LAW.  255 

statute  the  judges  have  a  right  to  decide  in  some  cases  even  in 
direct  contravention  of  its  language,  has  been  repeatedly  as- 
serted and  practiced  upon  by  the  highest  authority,  (a) 

these  he  says,  "  Examples  be  infinite,  as  well    in  the  civil  law  as  common  law." — Petyt,  Jus 

Parl.  ch.  v,  p.  66. 

(a)  The  Literal  Meaning,  when  Not  to  ~be  Followed. — Effects  and  consequences  of  a 
construction  are  to  be  considered,  and  where,  from  a  literal  interpretation,  an  effect 
would  follow  contrary  to  the  whole  intent  and  spirit  of  the  statute,  the  intent  and 
not  the  literal  meaning  must  be  regarded.  Ryegate  v.  Wardsboro,  30  Vt.  746.  Thus 
a  statute  providing  that  upon  a  decision  that  a  pauper  had  been  improperly  removed, 
the  town  to  which  he  was  removed  should  be  reimbursed  for  the  cost  of  his  support, 
was  held  not  to  apply  to  a  case  where,  the  decision  not  being  upon  the  merits,  the 
town  would,  by  a  literal  interpretation,  be  repaid  the  expense  of  maintaining  its  own 
pauper.  Ibid.  And  where  a  statute  will  operate  unjustly,  or  absurd  consequences 
will  follow,  if  the  literal  meaning  is  taken,  the  intention  as  gathered  from  the  whole 
will  prevail.  Ex  parte  Ellis,  11  Cal.  222,  in  which  it  was  held  that  the  writ  of 
habeas  corpus  could  not  run  out  of  the  county,  although  by  the  letter  of  the  act  it 
might.  And  under  a  statute  prohibiting  the  purchase  and  holding  of  real  estate  by 
banks,  but  allowing  them  to  hold  mortgages  and  liens  as  security  for  existing  debts, 
a  purchase  of  real  estate  by  a  bank  at  sheriff's  sale  under  an  execution  for  a  debt  to 
itself,  was  held  valid.  Ingraham  v.  Speed,  30  Miss.  410.  Where  the  right  of  appeal 
was  given  in  equity  cases  pending  in  a  certain  Court  on  the  first  day  of  July,  and 
there  could  be  no  such  cases  pending  therein  on  that  day,  but  there  could  be  on  the 
first  Monday  of  July,  it  seems  the  statute  should  be  construed  to  mean  the  first  Mon- 
day. Burch  v.  Newbury,  10  N.  Y.  374,  per  Jewett,  J.  If  following  the  literal  mean- 
ing will  lead  to  absurd  consequences,  the  literal  meaning  will  be  controlled ;  e.  g.,  a 
statute  against  "  wilfully  destroying  "  a  fence,  was  held  to  apply  only  to  an  act  which 
was  a  trespass.  State  v.  Clark,  5  Dutch.  96.  The  principle  that  the  intent  rather 
than  the  letter  is  to  be  followed  was  applied  in  determining  whether  an  instrument 
was  a  "  consent "  to  the  erection  of  a  building  within  the  statute  as  to  mechanics'  liens, 
and  the  writing  not  being  executed  with  the  forms  contemplated  by  the  act,  and 
obviously  having  a  different  purpose,  was  held  not  to  be  within  the  statute,  in  Jersey 
Co.  v.  Davison,  5  Dutch.  415.  A  statute  for  keeping  clear  the  bed  of  a  stream,  and 
prohibiting  the  placing  any  "  building,  erection,  or  thing,"  within  a  certain  distance 
of  its  centre,  was  held  not  to  prohibit  the  laying  of  stones  along  the  bottom  where  it 
was  scooped  out  by  a  freshet,  so  as  to  raise  it  to  its  old  height.  Colbran  v.  Barnes, 
11  C.  B.  (K  S.)  244.  Where  the  Constitution  required  the  vote  of  a  "  majority  of  the 
electors"  of  a  county  at  a  general  election  as  the  pre-requisite  of  a  change  of  the 
county  seat,  held  that  a  majority  of  those  actually  voting  at  such  election  was  suffi- 
cient, as  they  must  be  presumed  to  be  the  electors,  and  as  any  other  construction 
would  lead  to  absurd  consequences.  Taylor  v.  Taylor,  10  Minn.  107 ;  see  Bayard  r. 
Klinge,  16  Minn.  249.  Although  in  an  act  imposing  joint  and  several  liability  for 
the  debts  of  the  corporation  upon  the  trustees  the.-eof  for  default  in  making  and  pub- 
lishing certain  annual  returns,  the  terms  are  broad  enough  to  include  debts  to  an 
individual  trustee,  yet  such  a  construction  was  rejected  on  the  ground  of  its  unjust 
results.  Briggs  v.  Easterly,  62  Barb.  51.  A  constitutional  provision  as  to  giving 
canal  contracts  to  the  lowest  bidder  is,  it  seems,  to  be  construed  not  according  to  its 
strict  letter.  Frost  v.  Fay,  3  Lans.  398. 


256  STATUTES   CONSTRUED  AGAINST  THEIR  LETTER. 

"  Acts  of  Parliament,"  says  Lord  Coke,  "  are  to  be  so  con- 
strued as  no  man  that  is  innocent  and  free  from  injury  or 
wrong  be,  by  a  literal  construction,  punished  or  endangered."* 
-  So  in  Maryland,  it  has  been  said  that  the  intent  and  meaning 
of  the  makers  should  be  followed,  although  it  may  seem  to  be 
contrary  to  the  letter  of  the  statute,  f  "  The  words  of  an  act," 
says  the  Supreme  Court  of  the  same  State,  "  may  be  disre- 
garded when  that  is  necessary  to  arrive  at  the  intention  of  the 
lawmakers,  but  not  where  the  act  admits  of  only  one  interpre- 
tation." J  So,  too,  in  New  York,  it  has  been  said,  that  such  a 
construction  ought  to  be  put  upon  a  statute  as  may  best  an- 
swer the  intention  the  makers  had  in  view ;  and  the  intention 
is  sometimes  to  be  collected  from  the  cause  or  necessity  of  such 
statute,  and  sometimes  from  other  circumstances;  and  when- 
ever such  intention  can  be  discovered,  it  ought  to  be  followed 
with  reason  and  discretion  in  the  construction  of  the  statute, 
although  such  construction  seems  contrary  to  the  letter  of  the 
statute ;  and  a  thing  which  is  within  the  letter  of  the  statute  is 
not  within  the  statute  unless  it  be  within  the  intention  of  the 
makers.  I 

The  precise  meaning  of  the  rule  will  be  best  understood  by 
a  more  minute  reference  to  the  adjudged  cases,  where  a  con- 
struction has  been  put  on  laws  in  opposition  to  their  plain  and 
positive  language ;  for  it  is  perhaps  more  in  this  branch  than 
any  other  that  it  may  be  said,  that  legal  accuracy  cannot  be 
attained  by  any  abstract  rules,  but  only  by  impregnating,  or  as 
it  were  saturating,  the  mind  with  judicial  decisions,  and  with 
that  learning  tempered  by  sagacity  which  so  eminently  distin- 
guishes the  English  and  American  tribunals. 

By  the  act  of  51  George  III,  c.  36,  it  was  declared  that  no 
person  named  as  a  justice  of  the  Cinque  Ports  should  be  author- 
ized to  act  unless  he  had  taken  and  subscribed  certain  oaths, 
and  delivered  at  some  geoeral  sessions  a  certain  certificate.  A 
person  appointed  justice  had  taken  the  oath,  but  had  filed  no 

*  Margate  Pier  Co.  v.  Hannam,  3  B.  &          $  Brown  v.  Somerville,  8  Maryland,  444, 

Aid.  266.  456. 

f  Canal  Co    v.  R.  R.  Co.  4  Gill  &  Johns.  ||  Bacon's  Abr.  Statute  I.     Jackson  v.  Col- 

R.  152.     In  this  case  many  other  points  as  to  lins,  3  Cowen,  89,  96  ;    People  v.  Utica  Ins. 

statutes  and  their  construction  are  raised  and  Co.  15  J.  R.  358,  380,  381. 
decided. 


STATUTES  CONSTRUED  AGAINST  Tl 

certificate ;  it  was  held,  nevertheless,  that  the  effect  of  the  stat- 
ute was  only  to  make  it  unlawful  for  the  justice  to  act,  and 
not  to  render  his  acts  invalid.*  It  was  there  said,  "many  per- 
sons acting  as  justices  of  the  peace  in  virtue  of  offices  in  cor- 
porations, have  been  ousted  from  their  office  from  some  defect 
in  their  election  or  appointment ;  and  although  all  acts  properly 
corporate, .  and  officially  done  by  said  persons  are  void,  yet  acts 
done  by  them  as  justices,  or  in  a  judicial  character,  have  in  no 
instance  been  thought  invalid." 

Again,  it  has  been  said,  that  the  words  of  a  statute  are  not 
to  be  construed  so  as  to  extend  beyond  the  mischief  contemplated 
by  the  act,  where  such  construction  would  be  injurious  to  third 
persons.  So,  where  an  English  statute  directed  in  regard  to 
ecclesiastical  leases,  that  all  leases  therein  specified  should  be 
'Utterly  void  and  of  none  effect,  to  all  intents,  constructions,  and 
purposes;  yet,  upon  the  ground  that  the  object  of  the  statute 
was  to  prevent  the  impoverishing  of  the  successor,  it  was  held 
that  a  lease  by  a  dean  and  chapter,  though  within  the  act,  was 
good  during  the  life  of  the  dean.f 

So,  where  an  English  statute,  26  Geo.  Ill,  c.  60,  §  17,  declared 
that  a  bill  or  other  instrument  of  sale  of  a  vessel,  which  did 
not  recite  the  certificate  of  registry,  should  be  utterly  null  and 
void  to  all  intents  and  purposes,  it  was  held  that  where  a  bill 
of  sale  transferred  a  ship  by  way  of  mortgage  without  reciting 
the  certificate  of  registry,  the  instrument  should  be  treated  as 
void  so  far  forth  as  it  was  meant  to  convey  the  property  in  the 
ship ;  but  that  the  mortgagor  might  be  sued  upon  his  personal 
covenant  in  the  instrument  for  the  repayment  of  the  money 
lentj 

So,  an  English  statute,  9  Anne,  c.  14,  §  1,  declared  that  all 
notes,  &c.j  given  for  money  won  at  gaming,  sliall  be  utterly  void, 
frustrate,  and  of  none  •  effect,  to  all  intents  and  purposes  what- 
soever.  Notwithstanding  this  strong  language,  it  was  held  that 
a  draft  accepted  for  a  gaming  debt  by  the  loser,  and  passed  by 
the  winner  as  indorser  for  a  valuable  consideration  to  a  third 

*  Margate  Pier  Co.  v.  Hannam,  3  B.  &          f  Edwards  v.  Dick,  4  B.  &  Aid.  212. 
Aid.  266.     This  case,  as  is  evident,  was  de-  \  Dwarris,  pp.  638  and  639. 

cided  mainly  on  the  argumentum  ab  incon- 
venienli,  or  general  policy. 
17 


258  STATUTES   CONSTRUED   AGAINST  THEIR   LETTER. 

party,  was  good  as  against  the  winner  and  indorser,  on  the 
ground  that  otherwise  a  gross  frand  would  be  committed.* 

An  English  statute  (2  Geo.  Ill,  c.  19,  §  1,  and  39  Geo.  Ill, 
c.  34)  enacts  that  no  person  shall,  upon  any  pretense  whatso- 
ever, take,  kill,  or  have  in  his  possession  any  partridge,  between 
the  first  day  of  February  and  the  first  day  of  September.  The 
defendant  had  partridges  in  his  possession  several  days  after 
the  first  of  February ;  but  the  King's  Bench  refused  to  construe 
the  statute  according  to  its  plain  letter,  because,  as  they  said,  it 
might  lead  to  the  absurd  consequence,  that  a  party  who  should 
on  the  last  moment  of  the  first  of  February  kill  a  partridge, 
would  be  guilty  of  an  offence  by  having  the  same  partridge 
in  his  possession  at  the  earliest  moment  of  the  second  of  Feb- 
ruary.f 

The  statute  46  Geo.  Ill,  §  4,  enacts  that  every  person  who 
shall  appraise  any  estate,  real  or  personal,  in  expectation  of  any 
hire  or  reward,  shall  be  deemed  an  appraiser  within  the  act.  In 
construing  it,  Lord  Ellenborough  admitted  "that  if  those  words 
are  to  be  construed  literally,  the  consequence  will  be  that 
every  person  who,  in  one  single  instance  only,  shall  happen  to 
make  a  valuation,  must,  without  regard  to  circumstances,  be 
subject  to  the  appraisers'  duty ;"  and  on  the  ground  of  the  in- 
convenience and  hardships  of  such  construction,  held  that  it  was 
to  be  limited  to  the  persons  who  pur  sued  the  calling  or  occupation 
of  an  appraiser. % 

A  statute  (5  &  6  Win.  IV,  c.  50,  §  98)  conferred  a  power 
of  certifying  for  the  costs  of  a  special  jury  on  the  court  before 
which  an  indictment  should  be  "preferred"  This  was  held  to 
mean  "  tried"  on  the  ground  that  if  the  words  were  taken  as 
they  stood,  it  would  be  determined  that  the  Legislature  had 
been  guilty  of  a  very  great  omission;  for  in  a  great  majority  of 
cases  it  was  known  that  the  indictment  is  preferred  before  a 
different  court  from  that  by  which  it  is  tried.  | 

By  an  English  statute  (8  &  9  Wm.  Ill,  c.  70)   it  was  de- 

*  E<lwards  v.  Dick,  4  B.  &  Aid.  212.  This  Reg.  v.  Pembridge,  12  Law  J.  (1843),  part  2, 

seems  to  be  decided  on  the  equity  of  the  par-  Q.  B.  47  ;  contra.  Reg.  v.  Preston,  7  Dowl.  P. 

ticular  case.  C.  593.  It  is  to  be  noticed  that  tlie  corre- 

f  Simpson  v.  Unwin,  3  B.  &  Adol.  134.  spending  clause  in  a  former  act,  13  Geo.  Ill, 

{Atkinson  v.  Fell,  5  Maule  &  S.  240,  241.  c.  78,  §  t>5,  used  the  word  "tried,"  instead  of 

Rex  v.  Upper  Papworth,  2  East,  413;  "preferred."     Dwarris,  592. 


STATUTES  CONSTRUED  AGAINST  THEIR  LETTER.        259 

dared  that  no  servant  should  gain  a  settlement  in  any  parish, 
unless  he  should  continue  and  abide  in  the  same  service  for  one 
whole  year.  But  a  constructive  service,  pursuant  to  a  hiring 
for  a  year,  has  been  held  to  confer  a  settlement ;  though  this  in- 
terpretation has  been  repeatedly  regretted.* 

So,  on  a  statute  declaring  that  a  judge's  certificate  that  an 
action  was  really  brought  to  try  a  right,  must  be  given  imme- 
diately after  the-  verdict  is  delivered,  it  has  been  held,  that  the 
word  "  immediately  "  does  not  mean  as  soon  as  ever  the  verdict 
is  delivered,  but  that  the  judge  must  necessarily  have  some 
little  time  for  reflection.f 

So,  " null  and  void "  have  been  construed  to  mean  "  voidable" 
"  It  is  extraordinary,"  said  Lord  Denman,  "  that  there  should  be 
cases  in  which  it  has  been  held  that  the  words  '  null  and  void ' 
should  not  have  their  usual  meaning ;  but  the  word  void  has 
certainly  been  construed  as  voidable,  when  the  proviso  was  in- 
troduced in  favor  of  the  party  who  did  not  wish  to  avoid  the 
instrument."  J 

In  this  country,  many  cases  exhibiting  the  same  laxity  of 
construction  are  to  be  found.  A  Massachusetts  statute  declared 
all  usurious  mortgages  utterly  void  /  but  the  court  held  that  this 
meant  void  only  as  against  the  mortgagor  and  those  holding 
under  him,  and  that  a  usurious  mortgage  could  not  be  avoided 
by  a  mere  stranger  or  trespasser.!  So,  in  the  same  State,  the 
statute  of  wills  provided  that  all  persons,  of  full  age  and  of 
sound  mind,  might  dispose  of  their  real  estate,  as  well  by  last 
will  and  testament  in  writing,  as  otherwise  by  any  act  executed 
in  his  or  her  lifetime.  But  this  language  was  held  not  to  in- 

O  O 

elude  married  women,  on  the  ground  that  it  was  not  the  design 
of  the  Legislature  to  alter  the  relation  between  husband  and 
wife,  or  the  legal  effect  of  that  relation. *[ 

*  Dwarris,  p.  608.  Crosley  T.  Arkwright,  2  T.  R.  605 ;  Dwarris, 

f  Thompson  v.  Gibson,  8  Mees.   &  "VVel.  pp.  606,  639,  &  640. 

288 ;  Page  v.  Pearce,  8  Mees.  &  Wei.   677.  .        ||  Green  v.  Kemp,  13  Mass.  518 ;  affJ.  in 

But  see  Grace  v.  Clinch,  4  Q.   B.   606,  and  Commonwealth  v.    Weiher,   3  Met.  445.     In 

Shuttleworth  v.  Cocker,  1  M.  &  G.  829.  Smith 'v.  Saxton,  6  Pick.  483,  where  a  statute 

\  Pease  v.  Morrice,  2  A.  &  E.  94.     See,  prohibited  sheriffs  from  filling  up  process,  and 

also,  Reg.  v.  Inhabitants  of  Fordhare,  1 1  A.  &  declared  that  "  all  such  acts  done  by  them 

E.  83  ;  Reg.  v.  Justices  of  Leicester,  7  B.  &  G.  should  be  void,"  an  attempt  was  made  to  have 

6;  Reg.  v.  Inhabitants  of  Birmingham,  8  B.  the  word  read  voidable  ;  but  it  was  defeated. 

&  G.   29;    The  King  v.   Inhabitants  of   St.  ]\  Osgood  v.  Breed,  12  Mass.  530;  Wilbur 

Gregory,  2  Ad.  &  Ell.  99;  Rex  v.  Inhabitants  v.  Crane,  13  Pick.  284. 

of  Hipswell,  8  B.  &  C.  466  ;  Gye  v.  Felton,  4  In  Vermont,  where  it  was  provided  by  one 

Taunt.  876;  Barber  v.  Dennis,  1   Salk.   68;  section  of  an  act,  that  if  an  attorney  should 


200  STATUTES   CONSTRUED   AGAINST   THEIR   LETTER. 

So,  where  a  statute  gave  treble  damages  against  any  person 
who  should  commit  waste  on  land  pending  a  suit  for  its  recov- 
ery, the  court  held  that  the  act  did  not  apply  to  a  party  wholly 
ignorant  that  any  suit  was  pending,  saying,  "  We  can  hardly 
suppose  the  Legislature  intended  to  punish  so  severely  a  tres- 
passer wholly  ignorant  of  the  pending  of  the  suit.  The  statute 
is  highly  penal,  and  should  therefore  be  limited  in  its  applica- 
tion to  the  object  the  Legislature  had  in  view."  * 

So,  in  New  York,  a  statute  prohibited  any  sheriff  or  any 
deputy  sheriff,  or  any  one  for  them,  from  purchasing  any  prop- 
erty at  any  execution  sale,  and  declared  all  purchases  so  made, 
void.  In  an  action  of  ejectment,  certain  premises  had  been  sold 
by  one  deputy  sheriff,  on  an  execution  issued  under  a  judgment 
owned  by  another  deputy  of  the  same  sheriff,  and  were  bid  off ; 
as  was  alleged,  by  the  deputy  who  owned  the  judgment.  It 
was  contended  that,  under  the  statute,  the  purchase  was  void. 
It  was  conceded  that  if  the  facts  were  as  alleged,  the  case  came 
within  the  letter  of  the  act ;  but  it  was  held  by  the  Supreme 
Court  of  New  York  that  the  statute  should  not  apply,  on  the 
ground  that  the  manifest  object  of  the  law  was  to  prevent 
abuse,  and  to  prohibit  sheriffs  and  their  deputies  in  their  official 
capacity,  from  being  purchasers  at  their  own  sales,  and  thus 
being  induced  to  act  corruptly  in  relation  to  them ;  but  that  it 
could  never  have  been  intended  to  place  those  persons  in  a 
worse  situation  than  others  as  to  the  collection  of  their  own  de- 
mands.f 

The  words,  "  beyond  seas,"  in  a  State  statute  of  limitations, 
incautiously  borrowed  from  an  English  act,  has  been  construed 
by  the  Supreme  Court  of  the  United  States,  to  mean  out  of  the 
State.%  So  again,  in  Maryland,  an  act  authorizing  attachments 

knowingly  receive  a  greater  sum  for  fees  than  of  forcing  the  construction  of  the  words  of  the 

provided  for  by  law,  he  should  pay  a  tenfold  act,  in  order  to  avoid  so  gross  an  absurdity  as 

penalty,  and  the  next  section  declared  that  if  the  literal  interpretation  would  lead  us  into." 

any  officer  or  other  person  should  receive  any  Henry   v.  Tilson,   17  Verm.    479,  486,  487. 

greater  fees  than  provided  for  by  the  law,  he  See,  also,  The  Schooner  Harriet,  1  Story,  251, 

should  pay  a  penalty, — it  was  held  that  the  255,  where  a  word  in  one  section  was  inserted 

word  knowingly  was  to  be  construed  as  incor-  in  another  by  construction, 
pcrated  in  the  latter  section;  and  in  regard  *  Reed  v.  Davis  et  al.  8  Pick.  516,  517. 

to  another  section  of  the  same  act,  it  was  said,  f  Jackson  v.  Collins,  3  Cowen,  85,  96. 

"  The  necessity  of  the  case  compels  us  to  in-  f  Murray  v.    Baker,  3  Wheat.  541;  see, 

dude  these  additional  words,  at  the  expense  also,  Shelby  v.  Guy,  11  Wheat.  361. 


STATUTES   CONSTRUED   AGAINST  THEIR   LETTER.  261 

on  judgments,  to  be  laid  in  the  hands  of  any  "  person  or  per- 
sons whatever,  corporate  or  sole,"  has  been  held  not  to  include 
'municipal  corporations,  they  being  considered  to  be  excepted 
on  grounds  of  public  policy  and  convenience,  municipal  corpo- 
rations being  parts  of  the  State  government,  exercising  dele- 
gated political  powers  for  public  purposes.* 

In  the  same  State,  the  charter  of  a  cemetery  company 
provided  that  a  certain  number  of  acres  of  land  should  be  for- 
ever appropriated  and  set  apart  as  a  cemetery,  which,  so  long  as 
used  as  such,  should  not  be  liable  to  any  tax  or  public  imposition 
whatever.  Notwithstanding  this  general  and  sweeping  lan- 
guage, it  has  been  held  by  the  Court  of  Appeals,  that  a  paving 
tax  for  paving  the  street  in  front  of  the  property  in  question, 
was  not  embraced  in  the  exemption, — on  the  ground  that  the 
intention  of  the  Legislature  was  to  exempt  the  property  from 
all  taxes  or  charges  imposed  for  the  purpose  of  revenue,  but 
not  to  relieve  it  from  impositions  inseparably  incident  to  the 
location  in  regard  to  other  property,  f 

A  review  of  the  decisions  which  we  have  thus  grouped 
together,  can  hardly  fail  to  bring  to  the  lips  of  the  student  the 
motto  of  this  volume :  "  Great  is  the  mystery  of  judicial  inter- 
pretation." Here  we  find  cases  in  numbers,  and  the  numbers 
might  be  easily  increased,  where  laws  have  been  construed,  not 
merely  without  regard  to  the  language  used  by  the  legislator, 
but  in  defiance  of  his  expressed  will.  Qualifications  are  in- 
serted, exceptions  are  made,  and  omitted  cases  provided  for, 
and  the  statute  is  in  truth  remolded,  by  the  mere  exercise 
of  the  judicial  authority.  It  is  vain  to  seek  for  any  principle 
by  which  these  decisions  can  be  supported,  unless  it  be  one 
which  would  place  all  legislation  in  the  power  of  the  judiciary. 

*  Mayor  of  Bait.  v.  Root,  8  Maryland,  95.  on  the  authority,  or  weight,  of  the  cases 

See  on  this  point  of  policy,  Divine  v.  Harvie,  determined  in  the  State  of  New  York,  where 

7  Monroe,  444;  Chealey  et  al.  v.  Brewer,  7  it  has  been  held,  that  an  exemption  from  taxes 

Mass.  259;  and  Bulkley  v.  Eckert,  3  Barr.  did  not  include  assessments  for  opening 

(Penn.)Rep.  368.  The  general  doctrine  is  streets.  Matter  of  the  Mayor  <fec.  of  New 

that  money  in  the  hands  of  a  public  officer,  York,  11  Johnson,  81 ;  Bleecker  v.  Ballou,  3 

cannot  be  arrested  at  the  suit  of  a  private  Wendell,  263 ;  The  People  v.  Mayor  <fec.  of 

creditor,  on  account  of  the  derangement  which  Brooklyn,  4  Comstock,  429.  But  the  analogy 

would  be  thus  produced  in  the  service  of  the  does  not  seem  complete  ;  an  assessment  for 

government.  street  opening  is  founded  on  the  idea  of 

f  Mayor  of  Baltimore  v.  Greenmount  benefit  conferred,  and  in  that  point  of  view 

•Cemetery,  7  Md.  517.  This  case  was  decided  certainly  differs  from  a  simple  tax. 


262  TRUE  DUTY  OF  THE  JUDGE. 

They  are  indeed  all  condemned  by  the  terse  and  expressive 
maxim,  divinatio  est,  non  inter pretatio,  quce  omnino  recedit  a 
litera* 

The  mode  in  which  these  decisions  are  arrived  at  is  obvious. 
Take,  for  instance,  the  case  where  the  statute  declares  all 
gaming  paper  absolutely  void.f  The  court  simply  inserts  the 
w^ords,  "except  in  the  hands  of  a  lonafide  indorsee  for  value." 
Take  again  the  case  where  the  statute  declares  all  usurious 
mortgages  void.  £  The  court  merely  incorporates  the  exception, 
"  except  as  against  a  stranger  or  trespasser.".  It  is,  too,  to  be 
observed  that  these  are  not  cases  of  contradiction  or  ambiguity. 
The  words  of  the  statute  are  perfectly  plain  and  intelligible. 
There  is  no  propriety  in  calling  the  process,  construction  or 
interpretation.  It  consists  in  inserting  a  clause,  to  provide  for 
a  class  of  cases  which  the  court  thinks  ought,  as  a  matter  of 
justice,  to  be  excepted  out  of  the  statute.  Nor  is  there  any 
ground  for  asserting,  that  if  the  subject  had  been  called  to  the 
attention  of  the  legislator  he  would  have  made  the  exception. 
On  the  contrary,  it  is  utterly  impossible  to  say  that  the 
Legislature  did  not  intend  to  do  precisely  what  it  has  clone, 
viz.,  to  establish  a  sweeping  and  universal  rule,  which,  it  is  true, 
may  act  hardly  in  some  cases,  but  which  on  the  other  hand 
certainly  diminishes  the  chances  for  fraud  or  perjury  to  evade 
the  statute.  The  process,  therefore,  in  these  cases,  is  not 
obedience  to  legislative  commands  :  it  is  not  an  effort  to  arrive 

o  * 

at  the  legislative  intention ;  it  is  not  construction  of  a  doubtful 
provision  ;  it  is  a  violation  of  the  wrords  of  the  statute,  in  order 
to  make  a  rule  according  to  the  judicial  notion  of  right.  It  is 
purely  and  strictly  judicial  legislation.  And,  fortunately,  we 
are  not  without  abundant  authorities  in  our  law  which  steadily, 
it  may  be  sternly  applied,  will  establish  in  its  proper  place  the 
line  that  separates  the  judicial  from  the  legislative  functions. 
In  analyzing  the  above  cases,  it  will  be  found,  as  I  have  said, 
that  they  almost  all  consist  in  simply  excepting  out  of  the 

*  It  is  very  difficult,  in  examining  these  exist.     It  is  only  in  the  application  of  those 

cases,    to    accede    to    the    remark  of    Chief  principles,  that  the  difference  discovers  itself." 

Justice  Marshall,  that  "  on  the  abstract  prin-  United  States  v.  Fisher  et  al.  2  Cranch,  358. 
ciples    which   govern    courts    in   construing  •(•  Ante,  p.  257. 

legislative  acts,  no  difference  of  opinion  can  \  Ante,  p.  259. 


TRUE   DUTY  OF  THE  JUDGE.  2C3 

statute,  some  particular  class  of  cases,  either  on  the  ground  of 
policy  or  hardship,  or  on  the  notion  that  the  case  before  them 
is  a  casus  omissus,  or  omission  on  the  part  of  the  Legislature. 
All  these  practices  have  been  condemned  by  the  tribunals  of 
both  England  and  America,  in  language  which  leaves  little  to 
be  done  but  to  collect  and  collate  the  authorities.  "  We  are 
bound,"  says  Mr.  J.  Buller,  in  an  early  case  in  the  King's 
Bench,  "  to  take  the  act  of  Parliament  as  they  have  made  it  * 
a  casus  omissus  can  in  no  case  be  supplied  by  a  court  of 
law,  for  that  would  be  to  make  laws  ;  nor  can  I  conceive  that 
it  is  our  province  to  consider  whether  such  a  law  that  has  been 
passed  be  tyrannical  or  not."  * 

In  a  case  in  Massachusetts  where  it  was  attempted  to  evade 
the  absolute  prohibition  in  a  statute  prohibiting  the  sale  of 
liquor,  by  showing  that  it  was  sold  to  be  used  as  medicine,  the 
learned  and  able  Mr.  Chief  Justice  Shaw  used  this  impressive 
language:  "The  decisive  answer  is,  that  the  Legislature  has 
made  no  such  exception;  If  the  law  is  more  restricted  in  its 
present  form  than  the  Legislature  intended,  it  must  be  regulated 
by  legislative  action."  f  "  It  would  be  going  too  far,"  said  the 
Supreme  Court  of  the  United  States,  in  a  case  which  we  shall 
presently  examine  under  another  head,  "to  make  exceptions 
which  the  Legislature  has  not  made."  % 

As  to  cases  being  decided  on  the  grounds  of  policy  or 
hardship,  the  idea  has  been  repeatedly  and  vigorously  con- 
demned. "  Policy,"  says  Mr.  Justice  Taunton,  "  is  a  very 
questionable  and  unsatisfactory  ground ;  because  men's  minds 
differ  much  on  the  nature  and  extent  of  public  policy."  "  The 
ground  of  public  policy  is  a  very  unsafe  one ;  it  is  best  to 
adhere  to  the  words  used  in  the  act  of  Parliament."  | 

"  Arguments  drawn  from  impolicy  or  inconvenience,"  says 
Mr.  Justice  Story,  "  ought  to  have  little  weight.  The  only 
sound  principle  is  to  declare  ita  lex  scripta  est,  to  follow  and  to 
obey ;  nor  if  a  principle  so  just  could  be  overlooked,  could 
there  be  well  found  a  more  unsafe  guide  or  practice  than  mere 

*  Jones  v.  Smart,  1  T.  R.  44,  52  ;  a  case          f  Commonwealth  v.  Kimball,  24  Pick.  370. 
on    the    game    laws,  and    the    qualifications  t  M'lver  v.  Ragan,  2  Wheat.  25. 

required  under  them.  |  The  Inhabitants  of  St.  Gregory,  Dwarris, 

p.  597. 


264  TRUE   DUTY   OF   THE   JUDGE. 

y 

policy  and  convenience.  Men  on  such  subjects  complexionally 
differ  from  each  other,  the  same  men  differ  from  themselves  at 
different  times.  The  policy  of  one  age  may  ill  suit  the  wishes 
of  another ;  the  law  is  not  subject  to  such  fluctuations."  * 

So,  the  idea  that  any  regard  is  to  be  paid  to  the  consequences 
that  may  flow  from  a  given  construction,  has  been  rejected 
in  very  decided  language.  "  I  cannot  tell  what  consequences," 
says  Patteson  J.,  "  may  result  from  the  construction  which  we 
must  put  upon  the  statute ;  but  if  mischievous,  they  must  be 
remedied  by  the  Legislature."f  "  A  court  of  law,"  says  Lord 
Abinger,  "ought  not  to  be  influenced  or  governed  by  any 
notions  of  hardship ;  cases  may  require  legislative  interference, 
but  judges  cannot  modify  the  rules  of  law."  J 

When  in  a  case  on  the  rates  in  England,  the  question  was 
whether  the  inhabitants  of  Sergeant's  Inn  should  be  rated,  and 
the  hardship  of  the  case  was  dwelt  on,  Lord  Campbell,  C.  J.,  said, 
"  Hardship  can  only  be  urged  before  us,  when  we  are  construing 
doubtful  language,  to  assist  us  in  getting  at  the  real  intention 
of  the  Legislature.  Here  we  think  that  the  language  imposing 
the  liability  is  not  doubtful."  And  the  rate  was  held  good.) 

In  Massachusetts,  a  statute  provided  that  where  a  person 
charged  in  execution  desired  to  take  the  poor  debtor's  oath,  in 
order  to  obtain  his  liberation  from  imprisonment,  the  keeper  of 
the  prison  should  apply  to  a  justice,  and  a  notice  "  should  be 
served  on  the  creditor  or  creditors,  if  he,  she,  or  they  were  with- 
in the  commonwealth,"  and  it  was  held  that  notice  must  be 
served  on  all  the  creditors.  "It  is  said,"  said  Shaw,  C.  J.,  "  that 
this  construction  will  be  attended  with  great  inconvenience,  es- 
pecially where  the  creditors  are  numerous,  and  could  not  have 
been  intended  by  the  Legislature.  The  argument  from  incon- 
venience may  have  considerable  weight  upon  a  question  of  con- 
struction, where  the  language  is  doubtful ;  it  is  not  to  be  pre- 
sumed, upon  doubtful  language,  that  the  Legislature  intended  to 

*  Conflict  of  Laws,   17.     "  It  is  not  for  \  Rhodes  v.  Smethurst,  4  Mees.  &  W.  63. 

courts  of  justice,  proprio  marie  to  provide  for  See  to  same  point,  Hall  v.  Franklin,  3  Mees. 

all  the  detects  or  mischiefs  of  imperfect  legis-  &  Wels.  259. 

lation ;"  per  Story,  J.,  Smith-v.  Rues,  2  Sumn.  |  Moss  v.  Commissioners  of  Sewers,  4  Ellis 

354>  355.  <fc  Black.  (Q.  B.)  670,  679. 

f  The  Queen  v.  Justices  of  Lancashire,  11 
A.  &  E.  157. 


TRUE  DUTY  OF  THE  JUDGE.  265 

establish  a  rule  of  action  which  would  be  attended  with  incon- 
venience. But  where  the  language  is  clear,  and  where  of  course 
the  intent  is  manifest,  the  court  is  not  at  liberty  to  be  governed 
by  considerations  of  inconvenience."  *  "  Inconvenience  can  have 
weight  in  the  construction  of  a  statute  but  in  doubtful  cases."f 

"  By  the  rules  which  are  laid  down  in  England,"  says  the 
Supreme  Court  of  the  United  States,  "  for  the  construction  of 
statutes,  and  the  latitude  which  has  been  indulged  in  their  ap- 
plication, the  British  judges  have  assumed  a  legislative  power  • 
and  on  the  pretense  of  judical  exposition,  have,  in  fact,  made  a 
great  portion  of  the  statute  law  of  the  kingdom.  Of  those  rules 
of  construction,  none  can  be  more  dangerous,  than  that  which, 
distinguishing  between  the  intent  and  the  words  of  the  Legis- 
lature, declares,  that  a  case  not  within  the  meaning  of  a  statute 
according  to  the  opinion  of  the  judges,  shall  not  be  embraced 
within  the  operation  of  statute,  although  it  is  clearly  within  the 
words ;  or,  vice  versa,  that  a  case  within  the  meaning,  though 
not  within  the  words,  shall  be  embraced.  We  should  invariably 
deem  it  our  duty  to  defer  to  the  expression  of  the  Legislature,  to 
the  letter  of  the  statute,  when  free  from  ambiguity  and  doubt, 
without  indulging  in  speculations,  either  upon  the  impropriety 
or  hardship  of  laws."  J 

Indeed,  the  idea  that  the  judges  in  administering  the  written 
law,  can  mold  it  and  warp  it  according  to  their  notions,  not  of 
what  the  legislator  said,  not  even  of  what  he  meant,  but  of  what 
in  their  judgment  he  ought  to  have  meant, — in  other  words,  ac- 
cording to  their  own  ideas  of  policy,  wisdom,  or  expediency,— 
is  so  obviously  untenable  that  it  is  quite  apparent  that  it  never 
could  have  taken  rise,  except  at  a  time  when  the  division  lines  be- ; 
t  ween  the  great  powers  of  government  were  but  feebly  drawn,  and 
their  importance  very  imperfectly  understood.  In  the  present  con- 
dition of  our  political  systems,  this  practice  cannot  be  acted  on 
with  either  propriety  or  safety.  It  must  inevitably  be  attended 
by  two  great  evils.  It  gives  the  judiciary  a  power  almost  arbi- 
trary and  which  cannot  fail  to  be  abused,  and  it  leads  to  un- 

*  Putnam  v.  Longley,  11  Pick.  487,  490.  \  Priestman  v.  The  United  States,  4  Dal. 

f  Per  Parsons,  C.  J.,  Gore  v.   Brazier,  3     la?,  30,  n.  (1.)  per  Chase,  J. 
Mass.  523,  n.  539;    s.  P.  Langdon  v.  Potter,  3 
Mass.  215,  221. 


266  STRICT   CONSTRUCTION. 

bounded  carelessness  in  the  matter  of  legislation.  There  can 
be  little  inducement  to  caution  or  precision  in  drawing  legisla- 
tive enactments,  if  it  is  understood  that  all  errors  can  be  supplied, 
and,  indeed,  all  provisions  be  overridden,  by  the  mere  exercise 
of  the  powers  of  judicial  construction. 

These  considerations  apply,  as  I  have  said,  where  the  lan- 
guage of  statutes  is  clear.  If,  however,  by  reason  of  ambiguity 
or  contradiction,  the  intent  cannot  be  ascertained,  then,  as  I  have 
said,  the  case  alters,  and  the  duty  of  the  judge  is  very  different. 
The  judge  must  decide ;  but  the  law  has  not  spoken.  It  is  evi- 
dent that  his  functions  necessarily  become  to  a  certain  extent 
legislative.  There  is  no  alternative,  he  must  make  the  rule  in 
a  new  matter ;  and  these  cases  present  some  of  the  most  embar- 
rassing questions  that  can  occur  in  the  whole  range  of  juridical 
science ;  for  to  the  responsibilities  of  a  judge  they  add  those  of 
a  legislator.  To  these  cases  the  rules  and  nomenclature  of  strict 
and  equitable  construction  properly  apply,  and  to  these  they 
should  carefully  be  restricted.  Where  the  judge  has  an  admit- 
ted and  necessary  discretion,  considerations  of  policy  and  wis- 
dom, hardship  and  inconvenience,  become  as  indispensable  as 
they  are  out  of  place  where  the  matter  has  been  definitively  de- 
cided by  the  Legislature.  Such,  however,  has  not  been  the 
language  of  our  law ;  and  the  notion  of  a  restricted  or  an  en- 
larged construction  has  been  introduced  and  practiced  upon 
rather  with  reference  to  the  kind  or  class  of  laws  to  which  the 
statute  in  question  belonged  than  to  the  clearness  or  ambiguity 
of  the  letter  of  the  enactment.  The  subject  will  be  better  un- 
derstood after  a  careful  examination  of  the  decisions  that  have 
been  made  upon  various  classes  of  statutes. 

We  shall,  then,  first  consider  in  what  cases  it  has  been  held 
that  statutes  are  to  be  strictly  construed,  next  examine  the  cases 
in  which  it  has  been  said  that  they  are  to  be  equitably  inter- 
preted, and  thus  finally  endeavor  to  discover  the  true  boundaries 
of  the  judicial  and  legislative  attributes. 

Statutes  Conflicting  with  a  Constitution  or  with  a  Fundamental 
Law. — It  has  been  said  that  it  is  a  safe  and  wholesome  rule,  to 
adopt  the  restricted  construction  of  a  statute  when  a  more  lib- 


STATUTES   STRICTLY  CONSTRUED.  267 

eral  one  will  bring  us  in  conflict  with  the  fundamental  law.*  (a) 
So  in  England  it  has  been  held  that  acts  of  Parliament  which 

O-  « 

take  away  the  trial  by  jury,  or  abridge  the  liberty  of  the  sub- 
ject, ought  to  receive  a  strict  construction. f  So  there,  too,  it 
has  been  said  in  regard  to  the  Court  of  King's  Bench,  that  it 
cannot  be  ousted  of  its  jurisdiction  but  by  express  words  or  by 
necessary' implication,  any  more  than  an  heir  at  law  of  his  in- 
heritance. Yet  where  a  clause  was  clearly  inserted  for  the  bene- 
fit of  parties  prosecuted,  saying,  that  it  "  shall  and  may  "  be  law- 
ful for  justices  to  hear  complaints  under  the  statute,  it  was  held 
that  the  penalty  could  be  recovered  only  before  a  justice,  because 
otherwise  the  defendant  might  be  saddled  with  unmerciful  costs 
by  a  merciless  prosecutor.  £ 

Statutes  in  Derogation  of  the  Common  Law. — It  has  been 
repeatedly  declared  that  statutes  which  alter  common-law 
remedies  or  affect  common-law  rights  must  be  strictly  complied 
with.  (5)  Says  Lord  Coke  :  "  The  wisedom  of  the  judges  and 

*  People  v.  Board  of  Education  of  Brook-          \  Gates  v.  Knight,  3  Term  R.  442.     See 

lyn,  13  Barb.  400,  409.  Crisp  v.  Banbury,  8  Bing.  394,  where  it  was 

f  Looker  v.  Halcomb,  4  Bing.  183  ;  Dwar-  held  that  proceedings  against  the  trustee  of  a 

ris,  p.  646;  a  case  on  the  act  of  1  Geo.  IV,  c.  benefit  society  could  be  taken  by  arbitration 

56,  empowering  justices  of  the  peace  to  award  only,  the  courts  being  ousted  of  their  jurisdic- 

satisfaction  for  damages  done  by  malicious  tion  by  the  express  words  of  the  act. 
and  wilful  trespassers. 

(«)  Of  two  constructions  that  must  be  adopted  which  will  render  the  statute  consti- 
tutional, even  though  it  be  not  the  most  obvious,  provided  that  violence  is  not  done 
to  the  language  and  terms  of  the  act,  French  v.  Teschemaker,  24  Cal.  518  ;  People 
v.  San  Francisco,  &c.  R.  R.  35  Cal.  606 ;  Bigelow  v.  West,  Wise.  R.  R.  27  Wise.  478 ; 
and  if  a  statute  is  capable  of  a  construction  which  will  make  it  constitutional,  this 
construction  will  and  must  be  adopted,  Buncombe  v.  Prindle,  12  Iowa  1  ;  Colwell  v. 
May's  Landing,  &c.  Co.  4  C.  E.  Green.  245  ;  Iowa,  &c.  Co.  v.  Webster  County,  21  Iowa, 
221 ;  Roosevelt  v.  Godard,  52  Barb.  533.  But  a  construction  must  not  be  forced 
upon  a  statute  doing  violence  to  the  plain  import  of  its  language,  in  order  to  render 
it  constitutional.  A  court  will  doubtless  and  should,  on  the  principle  of  ut  res  magis 
valeat,  strive  to  uphold  a  statute  by  any  reasonable  method  of  interpretation,  and  even 
by  being  astute  in  finding  a  valid  meaning  and  intent,  but  it  cannot  make  a  new 
statute.  As  an  illustration  of  this  principle,  see  the  celebrated  legal  tender  case  of 
Hepburn  v.  Griswold,  8  Wall.  603,  which  has  not  been  overruled  so  far  as  it  proceeds 
upon  this  doctrine. 

(&)  Statutes  in  Derogation  of  the  Common  Law  to  be  Strictly  Construed. — That  stat- 
utes are  not  to  be  presumed  to  alter  the  common  law  farther  than  they  expressly  declare, 
see  Sullivan  v.  La  Cross,  &c.  Co.  10  Minn.  386 ;  Blackman  v.  Wheaton,  13  Minn.  326  ; 
Bennett  v.  Hollman,  44  Miss.  323.  And  a  transaction  must  be  both  within  the  letter 
and  spirit  of  the  statute  which  derogates  from  the  common  law  in  order  to  be 
governed  by  it.  Dewey  v.  Goodenough,  56  Barb.  54.  Even  a  constitutional  pro- 


268  STATUTES    STRICTLY  CONSTRUED. 

sages  of  the  law  Lave  alwayes  suppressed  new  and  subtile  in- 
ventions in  derogation  of  the  common  law."  *  So  of  a  statute 

*  Coke,  Inst.  282,  b.  L.  3,  §  485;  Crayton  v.  Hunger,  11  Texas,  234. 

vision  in  derogation  of  the  common  law,  it  is  said,  ought  not  to  be  extended  by  con- 
struction, e.  g.,  a  provision  securing  to  married  women  their  separate  property. 
Brown  v.  Fifield,  4  Mich.  322.  This  particular  doctrine,  however,  is  plainly  opposed 
to  the  whole  theory  of  State  government ;  it  makes  the  common  law  in  theory  superior 
to  the  Constitution,  and  represents  the  Constitution  as  something  imposed  upon  and 
drawing  its  life  from  the  common  law.  On  the  contrary,  the  true  conception  of  the 
State  government  regards  the  Constitution  as  the  fundamental  law  of  the  State,  and 
the  common  law  as  existing  in  and  part  of  the  jurisprudence  of  the  State  by  the  ex- 
press or  implied  consent  of  that  Constitution;  in  other  words,  the  Constitution 
recognizes  the  common  law,  and  not  the  common  law  the  Constitution. 

There  has  been  great  conflict  of  opinion  as  to  the  rule  of  construction  which 
should  be  applied  to  the  statutes  altering  the  legal  status  of  married  women  and  giv- 
ing them  additional  power  over  their  property.  Some  courts,  because  these  statutes 
change  the  common  law,  have  said  that  they  should  be  construed  strictly,  and  not 
extended  beyond  the  letter.  Perkins  v.  Perkins,  62  Barb.  531.  Other  courts  regard- 
ing them  as  highly  remedial,  and  looking  at  the  general  intent,  have  been  inclined 
to  follow  their  spirit  beyond  the  letter.  De  Vries  v.  Conklin,  22  Mich.  255.  We 
shall  add  a  few  observations  upon  these  statutes,  and  upon  the  principle  of  construc- 
tion, at  the  close  of  this  note,  simply  saying  that  it  is  impossible  to  reconcile  the 
decisions  upon  any  principle,  and  some  of  them  are  undoubtedly  wrong.  The  reader 
should  be  cautious  in  relying  upon  these  decisions,  for  many  of  them  have  been  re- 
versed on  appeal,  and  not  a  few  of  them  have  been  overruled,  this  being  notably  the 
case  in  New  York.  As  a  general  proposition,  although  there  are  exceptions  upon 
one  or  two  points  of  construction,  the  New  York  Court  of  Appeals,  since  the  passage 
of  the  first  act  in  1848-9,  has  given  these  statutes  a  liberal  construction,  following 
their  intent  with  reasonable  freedom,  and  refusing  to  apply  the  rule  which  is  the 
subject-matter  of  this  note,  and  in  doing  so  has  many  times  reversed  the  decision  of 
the  supreme  and  other  inferior  courts  in  that  State  which  were,  as  a  whole,  inclined 
to  construe  the  statutes  strictly.  Thus,  in  a  recent  case,  the  Supreme  Court  of  N.  Y. 
said,  that  the  acts  authorizing  married  women  to  contract  in  relation  to  their  sepa- 
rate estate,  and  to  sue  and  to  be  sued,  are  to  be  construed  strictly,  and  refer  to,  and 
recognize  such  forms  of  contract  only,  and  such  forms  of  action  and  kinds  of  remedy 
as  were  in  existence  and  legal  in  respect  to  such  persons  and  their  property  at  the 
time  the  statutes  were  passed  ;  and  a  wife  intending  thereby  to  become  her  husband's 
surety,  having  indorsed  his  promissory  note,  and  having  added  to  the  indorsement 
this  stipulation,  "  For  value  received  I  hereby  charge  my  individual  property  with 
the  payment  of  this  note,"  and  an  ordinary  legal  action  having  been  brought  against 
her,  seeking  to  recover  an  ordinary  common-law  personal  judgment  for  the  amount  of 
the  note,  the  court  held  that  the  action  could  not  be  maintained,  that  the  only  action 
contemplated  by  the  statute  was  a  suit  in  equity  to  charge  the  separate  property  of 
the  wife,  and  that  the  stipulation  quoted  was  not  sufficiently  specific  in  pointing  out 
and  describing  the  property  intended  to  be  affected  with  the  lien  to  create  any  equi- 
table charge  which  could  be  enforced  according  to  the  settled  doctrines  of  equity. 
Corn  Exchange  Ins.  Co.  v.  Babcock,  57  Barb.  222.  It  is  very  plain  that  this  decision 
nullified  the  statute,  for  it  virtually  said  that  after  all  its  labors,  and  notwithstanding 


STATUTES   STRICTLY  CONSTRUED.  2GQ 

extending  the  common-law  right  of  distress  by  preferring  the 
landlord  over  an  execution  creditor,  provided  notice  was  given 

the  strong  express  provisions  it  had  enacted,  the  Legislature  had  simply  left  the  law 
as  to  married  women's  contracts  and  the  remedies  to  enforce  them  exactly  where  it 
was  when  the  statute  was  passed.  On  appeal,  the  Court  of  Appeals  held  that  the 
statutes  were  to  be  construed  liberally  as  remedial  statutes  according  to  their  fair 
intent ;  that  they  provided  for  a  legal  action  and  a  personal  judgment  against  a 
married  woman  ;  that  they  simply  required  as  a  condition  to  her  liability,  if  the  con- 
tract was  not  made  in  her  business  or  was  not  for  the  benefit  of  her  property,  that  she 
should  indicate  in  the  contract  an  intention  to  charge  her  property ;  and  that  the 
statute  had  nothing  to  do  with  the  old  equitable  doctrines  as  to  remedy  against  the 
wife's  property  instead  of  against  her  personally.  Corn  Exch.  Ins.  Co.  v.  Babcock, 
42  N.  Y.  613.  We  have  thus  stated  these  two  decisions  at  large,  because  they  illus- 
trate in  a  striking  manner  the  working  of  the  rule  that  statutes  in  derogation  of  the 
common  law  are  to  be  construed  strictly,  and  show  how  an  application  of  it  may 
override  positive  mandates  of  a  Legislature  and  destroy  a  highly  remedial  measure,  the 
intent  and  general  object  of  which  were  as  clear  as  could  be  made  by  appropriate 
language. 

We  give  other  examples  of  statutes  to  which  the  rule  in  question  has  been  ap- 
plied, and  in  which  it  has  been  held,  and  often  with  plain  propriety,  that  the  con- 
struction must  be  strict ;  a  statute  providing  for  constructive  service  of  process, 
Stewart  v.  Stringer,  41  Mo.  400 ;  Gray  v.  Larrimore,  2  Abb.  U.  S.  R.  542  ;  authoriz- 
ing one  to  be  a  witness  in  his  own  cause,  Warner  v.  Fowler,  8  Md.  25  ;  Dwelly  v. 
Dwelly,  46  Me.  377;  relaxing  the  rule  of  evidence  as  to  what  constitutes  an  adverse 
possession,  Thistle  v.  Frostburg  Coal  Co.  10  Md.  129  ;  creating  statutory  remedies 
different  from  those  at  the  common  law,  Bailey  v.  Bryan,  3  Jones  Law,  357 ;  e.  g., 
giving  mechanics  a  lien  on  chattel  interests,  Esterley's  Appeal,  54  Penn.  St.  192 ; 
giving  a  summary  mode  of  obtaining  possession  of  land,  Baldwin  v.  Cooley,  1  Rich. 
N.  S.  256  ;  providing  for  sale  of  land  of  decedent  for  payment  of  debts,  Hollman  v. 
Bennett,  44  Miss.  323 ;  providing  for  arbitrations,  Burnside  v.  Whitney,  21  N.  Y. 
148 ;  but  per  contra  see  Tuskaloosa  Bridge  Co.  v.  Jemison,  33  Ala.  476 ;  changing 
the  commercial  law,  Crowell  v.  Van  Bebber,  18  La.  Ann.  637  ;  allowing  a  debtor  of 
a  judgment  debtor  to  pay  his  debt  to  the  sheriff  in  discharge  thereof,  Howey  v.  Mil- 
ler, 67  N.  C.  459  ;  giving  a  remedy  against  public  officers  by  motion  on  their  official 
bond,  Hearn  v.  Ewin,  3  Cold.  399. 

Statutory  remedies,  especially  when  the  right  to  be  enforced  was  unknown  at  the 
common  law,  are  to  be  followed  with  strictness  both  as  to  the  methods  to  be  pursued 
and  the  cases  to  which  they  are  applied,  Lease  v.  Vance,  28  Iowa,  509 ;  Bailey  v. 
Bryan,  3  Jones  Law,  357 ;  Banks  v.  Darden,  18  Geo.  318) ;  must  be  "  substantially  " 
followed,  Ham  v.  Steamboat  Hamburg,  2  Clarke  (la.),  460 ;  People  v.  Gates,  57  Barb. 
291 ;  as  illustrations  of  such  remedies  and  of  the  rule  applied  to  them,  statutory 
power  of  courts  under  a  special  statute,  e.  g.,  to  relieve  from  disability,  State  v. 
Woodson,  41  Mo.  227  ;  conferring  additional  powei  on  justices  of  the  peace,  O'Brian 
v.  State,  12  Ind.  369;  allowing  constructive  service,  Stewart  v.  Stringer,  41  Mo. 
400  ;  allowing  sale  of  property  for  taxes,  every  provision  having  the  semblance  of 
benefit  to  owner  must  be  complied  with,  Newell  v.  Wheeler,  48  K  Y.  486 ;  tax  pro- 
ceedings, Harley  v.  Ramsey,  49  Mo.  309 ;  Abbott  v.  Doling,  49  Mo.  302  ;  one  who 


270  STATUTES  STRICTLY  CONSTRUED. 

to  the  officer  of  rent  due  before  the  sale,  it  was  held  that  being 
in  derogation  of  the  common  law  it  must  be  strictly  pursued, 
and  that  a  notice  after  the  sale  would  not  answer.* 

*  Bussing  v.  Bushnell,  6  Hill,  382. 

pursues  a  statutory  remedy  waives  all  objections  to  the  constitutionality  of  the  statute 
in  respect  of  the  conditions  which  it  imposes,  Burrows  v.  Bashford,  22  Wise.  103. 

There  are  many  cases  in  which  the  court  has  given  little  weight  to  the  rule  under 
consideration,  and,  regarding  the  statute  as  remedial,  has  rather  favored  than  re- 
stricted its  operation.  Thus  it  has  been  said  that  statutes  giving  mechanics  a  lien 
are  not  to  be  construed  strictissimi  juris,  but  so  as  to  do  substantial  justice,  Putnam 
v.  Ross,  46  Mo.  337 ;  and  are  even  to  be  construed  liberally  to  advance  the  remedy, 
Oster  v.  Rabeneau,  46  Mo.  595 ;  Buchanan  v.  Smith,  43  Miss.  90.  A  summary 
remedy  by  landlord  and  tenant  process  seems  to  have  been  held  remedial,  and  to 
have  been  treated  liberally,  in  Jackson  v.  Warren,  32  111.  331. 

The  same  law  may  be  liberally  construed  as  to  some  purposes,  and  strictly  as  to 
others ;  thus  a  mechanics'  lien  law  will  be  strictly  construed  so  far  as  it  imposes  a 
lien  on  property  on  account  of  work  for  which  the  owner  did  not  contract.  Jersey 
Co.  v.  Davison,  5  Dutch.  415.  Laws  giving  a  lien  to  certain  classes  of  creditors  in 
cases  of  insolvency  are  to  be  construed  with  reasonable  strictness.  Chapin  v.  Persse 
&c.  Works,  30  Conn.  461  (mechanics'  lien  law). 

It  was  said  in  a  recent  case  by  the  N.  Y.  Court  of  Appeals,  that  a  statute,  though 
in  derogation  of  the  common  law,  if  it  is  not  penal  or  in  derogation  of  natural  right, 
is  to  be  fairly,  if  not  even  liberally  construed  ;  e.  g.,  the  phrase  "  any  goods  or  mer- 
chandise whatsoever"  in  the  act  of  Congress  of  March  3,  1851,  limiting  the  liability 
of  ship  owners,  was  held  to  include  baggage.  Chamberlain  v.  Western  Trans.  Co. 
44  N.  Y.  305. 

This  we  believe  to  be  the  true  doctrine,  and  it  suggests  a  few  observations  upon 
the  rule  under  consideration.  The  rule  that  statutes  in  derogation  of  the  common 
law  are  to  be  strictly  construed,  was  introduced  at  an  early  day,  when  the  common 
law  was  in  its  integrity ;  when  courts  and  judges  and  writers  like  Coke,  ignorant  of 
every  other  system  of  jurisprudence,  spoke  of  it  as  the  perfection  of  human  wisdom, 
atid  were  jealous  of  every  attempt  of  Parliament  to  change  it  in  the  minutest  particu- 
lar, and  defended  its  most  outrageous  provisions  by  arguments  which  to  us  are. the 
perfection  of  unreason  and  absurdity;  when  Parliament  itself  very  seldom  undertook 
to  modify  or  add  to  it.  And  it  would  seem  that  modern  courts  and  judges  have  re- 
peated the  rule  without  any  knowledge  of  its  origin  and  without  any  thought  of  the 
enormous  changes  in  the  relations  between  the  courts  and  the  Legislature  which 
have  taken  place  since  the  rule  was  promulgated.  In  fact,  the  reason  for  the  rule,  or 
rather  the  occasion  of  it,  for  there  never  was  any  reason  for  it,  has  entirely  passed 
away.  It  is  a  demonstrable  proposition,  that  there  is  hardly  a  rule  or  doctrine  of 
positive  practical  jurisprudence  in  England  or  in  the  United  States  to-day,  which  is 
not  the  result,  in  part  at  least,  of  legislation ;  hardly  a  rule  or  doctrine  of  the  original 
common  law  which  has  not  been  abolished,  or  changed,  or  modified  by  statute. 
Furthermore,  it  is  conceded  that  the  ancient  conception  as  to  the  perfection  of  the 
common  law  was  absurdly  untrue.  The  great  mass  of  its  practical  rules  as  to  prop- 
erty, as  to  persons,  as  to  obligations,  and  as  to  remedies,  were  arbitrary,  unjust,  cum- 
bersome, barbarous.  For  the  last  generation  the  English  Parliament  and  our  State 
Legislatures  have  been  busy  in  abolishing  these  common-law  rules,  and  in  substitut- 


STATUTES   STRICTLY  CONSTRUED.  271 

So,  where  a  statute  giving  a  summary  proceeding  to  recover 
possession  of  land,  directs  a  trial  by  jury,  a  jury  cannot  be 
waived  even  by  consent.  In  this  case  it  was  said,  "  The  statu- 
tory remedy  by  way  of  a  summary  proceeding  is  in  derogation 
of  the  common-law  remedy  by  action,  and  must  be  strictly  pur- 
sued. A  peculiar  and  limited  jurisdiction  is  thereby  conferred 

ing  new  ones- by  means  of  statutes.  That  all  tliis  remedial  work,  all  this  benign  and 
necessary  legislative  endeavor  to  create  a  jurisprudence  scientific  in  form  and  adapted 
to  the  wants  of  the  age,  should  be  hampered,  and  sometimes  thwarted  by  a  parrot- 
like  repetition  and  unreflecting  application  of  the  old  judicial  maxim  that  statutes  in 
derogation  of  the  common  law  are  to  be  strictly  construed,  is,  to  say  the  least, 
absurd.  The  statutes  in  regard  to  married  women  are  an  excellent  illustration  of 
this  truth.  The  common  law  upon  this  subject  was  to  the  last  degree  barbarous- 
The  Legislature  of  every  State  in  the  Union  has  recognized  this  barbarous  character 
of  that  law,  and  has,  to  a  greater  or  less  extent,  modified  it,  and  in  many  instances 
utterly  abolished  it.  The  unanimity  on  the  subject  is  complete.  There  is  not  an 
instance  of  a  Legislature  retracting  its  steps  ;  on  the  contrary,  any  change  has  been 
in  the  direction  of  further  amendment.  These  statutes  are  in  the  highest  degree 
remedial,  and,  although  many  of  them  are  carelessly  drawn,  their  general  intent  and 
object  are  plain  beyond  the  possibility  of  doubt  or  question ;  they  remove  an  enor- 
mous wrong  which  had  disfigured  our  jurisprudence  and  our  civilization.  In  the 
face  of  all  this,  many  courts  and  judges  have  attempted  to  defeat  this  great  reform 
by  pronouncing  the  statutes  to  be  in  derogation  of  the  common  law,  and  therefore  to 
be  confined  in  their  operation  to  the  very  letter,  and  in  not  a  few  instances  this  letter 
has  been  disregarded  and  overruled.  But,  on  the  whole,  the  attempt  has  been  un- 
successful, and  the  statutes  have  been  treated  as  remedial,  and  have  been  carried  out 
fairly  and  reasonably  according  to  their  spirit. 

What,  then,  is  the  true  limit  and  application  of  the  rule  ?  With  all  the  gross  im- 
perfection of  the  common  law,  it  did  contain  certain  grand  principles,  and  these 
principles  had  been  worked  out  into  many  practical  rules  both  of  primary  right  and 
of  procedure,  which  protected  personal  rights, — rights  of  property,  of  life,  of  liberty, 
of  body  and  limb, — against  the  encroachments  both  of  government  and  of  private 
individuals.  This  was  the  great  glory  of  the  common  law.  Any  statutes  which 
should  take  away,  change,  or  diminish  these  rights  should  be  strictly  construed.  To 
this  extent  the  rule  is  in  the  highest  degree  valuable,  not  because  such  statutes  "  are 
in  derogation  of  the  common  law,"  but  because  they  oppose  the  overwhelming  power 
of  the  government  to  the  feeble  power  of  resistance  of  the  individual,  and  it  is  the 
duty  of  courts  under  such  circumstances  to  guard  the  individual  as  far  as  is  just  and 
legal,  or,  in  other  words,  to  preserve  the  individual  from  having  his  personal  rights 
taken  away  by  any  means  that  are  not  strictly  legal. 

Except  in  the  class  of  cases  last  mentioned,  the  rule  has  become  obsolete;  the 
form  of  verbal  reasoning  which  once  supported  it  has  vanished  ;  and  the  rule  itself 
should  be  abolished. 

Statutes  affirming  the  common  law  are  to  be  construed  as  to  their  consequences 
in  accordance  with  the  common  law ;  e.  g.,  where  a  statute  prohibited  divorce  on  the 
confession  of  the  parties,  this  was  held  not  to  render  confessions  inadmissible  in  evi- 
dence. Baker  v.  Baker,  13  Cal.  87. 


272  STATUTES   STRICTLY  CONSTRUED. 

on  certain  magistrates,  which  can  be  exercised  only  in  the  way 
prescribed.  They  have  no  jurisdiction  to  try  the  cause  except 
by  the  mode  pointed  out."  * 

So  it  has  been  said,  that  statutes  in  derogation  of  the  com- 
mon-law rules  of  evidence  should  be  so  construed  if  possible  as 
to  preserve  the  principles  deemed  essential  in  the  reception  of 
testimony.f  Thus  it  has  been  held  in  Maryland,  that  an  act 
permitting  a  party  to  prove  his  own  account  by  oath  or  affir- 
mation is  in  derogation  of  the  common  law  and,  like  all  such 
legislation,  to  be  construed  strictly.  J  So  again  it  has  been  said, 
that  statutes  exempting  portions  of  a  debtor's  property  from,  lia- 
bility for  his  debts  are  in  derogation  of  the  common  law,  and 
not  to  be  extended  by  an  equitable  construction ;  and  it  has 
been  held  that  where  a  statute  declared  a  team  should  be  ex- 
empt from  execution  this  did  not  exempt  the  necessary  food  for 
them,  although  a  previous  act  of  exemption  did  exempt  a  cow 
and  two  swine  and  the  necessary  food.  ||  So,  too,  acts  restrict- 
ive of  common-law  rights,  as  giving  exclusive  power  to  port- 
wardens  to  survey  vessels  unfit  to  go  to  sea,  and  to  decide  on 
the  extent  of  repairs  wanted,  are  to  be  construed  strictly.  ^[ 

Where  a  statute  for  the  more  effectual  protection  of  prop-* 
erty  of  married  women  provided,  "  that  any  married  female 
might  take  by  inheritance  or  by  gift,  grant,  devise,  or  bequest 
from  any  person  other  than  her  husband,  and  hold  to  her  sole 
and  separate  use,  and  convey  and  devise  real  and  personal 
property,  and  any  interest  or  estate  therein,  and  the  rents, 
issues,  and  profits  thereof,  in  the  same  manner  and  with  the 
like  effect  as  if  she  were  unmarried,"  it  was  held  that  the  pro- 
vision to  convey  should  be  limited,  like  the  provision  to  take, 
to  persons  other  than  her  husband,  in  order  to  prevent  a  wife 
from  surrendering  her  dower  right  to  her  husband,  and  also  to 
"  preserve,  to  some  extent,  that  invaluable  principle  of  the 
common  law  by  which  husband  and  wife  are  regarded,  during 
coverture,  as  one  person,  incapable  of  contracting  with  and  con- 
veying lands  to  each  other."** 

*  Benjamin  v.  Benjamin,  1  Seld.  383.     It  ||  Rue  v.  Alter,  5  Denio,  119. 

•will  be  observed,  however,  that  the  opinion         ^[  Portwardens  of  N.  Y.  v.  Cartwright,  4 

in  this  case  is  obiter.  Sandf.  236. 

f  The  People  v.  Hadden,  3  Denio,  220.  **  Graham  v.  Van  Wyck,  14  Barbour,  531, 

\  Warner  v.   Fowler,   8    Maryland,    25 ;  582. 
Dyson  v.  West's  Extc.  1  Har.  and  J.  567. 


THE   COMMON   LAW.  273 

To  understand  the  meaning  and  present  value  of  the  rule 
that  statutes  in  derogation  of  the  common  law  are  to  be  strictly 
construed,  we  must  keep  in  mind  the  feelings  of  our  ancestors 
in  regard  to  that  system  of  jurisprudence.  They  invariably 
spoke  of  it  with  a  reverential  awe,  blended  with  a  tender 
attachment.  Says  Lord  Coke,  "  This  is  another  strong  argu- 
ment in  law,  Niliil  quod  est  contra  rationem  est  licitum  ;  for 
reason  is  the  life  of  the  law ;  nay,  the  common  law  itselfe  is 
nothing  else  but  reason,  which  is  to  be  understood  by  an  arti- 
ficiall  perfection  of  reason  gotten  by  long  study,  observation, 
and  experience,  and  not  of  every  man's  natural  reason.  This 
legall  reason  est  summa  ratio  /  "  *  and  again,  "  De  common  droit 
— of  common  right — this  is  by  the  common  law ;  because  the 
common  law  is  the  best  and  most  common  birthright  that  the 
subject  hath  for  the  safeguard  and  defence  not  only  of  his 
goods,  lands,  and  revenues,  but  of  his  wife  and  children."  * 
"  The  common  law  of  England  sometimes  is  called  right, 
sometimes  common  right,  and  sometimes  communis  justitia.  In 
the  grand  charter,  the  common  law  is  called  right.  Rectum 
nulli  vendemus,  nulli  negabimus  aut  differ  emus  justitiam  vel 
rectum"  f  And  again,  says  an  old  reporter,  " The  statute  law 
is  like  a  tyrant,  where  he  comes  he  makes  all  void ;  but  the 
common  law  is  like  a  nursing  father,  makes  only  void  that  part 
where  the  fault  is,  and  preserves  the  rest."  % 

It  is  difficult,  if  not  impossible,  now  to  understand  this  en- 
thusiastic loyalty  to  a  body  of  law,  the  most  peculiar  features 
of  which  the  activity  of  the  present  generation  has  been 
largely  occupied  in  uprooting  and  destroying.  But  to  our 
ancestors  the  common  law  represented  the  old  customs  of  the 
country,  the  ancient  landmarks  of  their  property ;  and,  what 
was  more  dear  to  them  still,  the  common  law  as  opposed  to 

*  Coke,  Insf.  97  b.  to   an    act  of   Parliament.' — Atkyiis,    1,  33, 

\  Coke,  Inst.  142  a.  Superior  ?  how  so  !     The  reason  is  not  the 

\  1  Mod.  35 ;  Collins  v.  Blantern,  2  Wils.  less   brilliu.it  for   being   unintelligible.      '  It 

351 ;  Dwarris,  638.     It  is  curious  to  contrast  works  itself  pure  from  the  fountains  of  jus- 

with  these  tender  laudations  of  the  old  law,  tice : '  fountains  abundant  on  the  ground  floor 

Bentham's  savage   denunciation  of  the  same  of  the  great  hall,  unknown  (it  seems)  above 


king, 
laws '  (says  he  in  so  many  words) '  is  superior     diciai  Evidence,  vol.  iv. 

18 


274  TIIE   COMMON    LAW. 

the  civil  law  represented,  imperfectly  it  is  true,  that  irrepressi- 
ble desire  for  absolute  liberty  of  thought  and  speech  and 
action — the  chief  glory  of  our  race.  This  is  the  reason  why 
the  common  law  is  the  subject  of  the  fervid  eulogy  of  our 
ancestors,  and  why  the  courts  saw  fit  to  regard  every  statutory 
innovation  on  its  ancient  observances  with  distrust  and  disfavor. 

But  in  regard  to  the  common  law  now,  while  insisting 
strenuously  upon  the  propriety  in  all  cases  of  adhering  strictly 
to  the  expressed  intention  of  the  Legislature,  let  us  not  attach 
too  much  value  to  maxims  which  really  belong  to  another  age. 
The  condition  of  things  has  very  essentially  altered  since  the 
time  of  Lord  Coke.  The  procedure  of  the  law  in  which  he 
gloried  is  almost  wholly  effaced;  as  far  as  it  relates  to  real 
estate,  its  maxims  are  in  a  great  measure  abrogated ;  in  regard 
even  to  private  relations,  its  doctrines  are  materially  changed, 
and  the  liberties  of  that  portion  of  our  race  at  least  which 
occupies  American  soil,  rest  upon  a  surer  basis  than  ancient 
customs.  It  would  appear,  therefore,  that  the  doctrine  that 
statutes  in  derogation  of  the  common  law  are  to  be  strictly 
construed,  has  now  truly  no  solid  foundation  in » our  jurispru- 
dence ;  and,  though  it  will  long,  no  doubt,  be  familiar  to  the 
forensic  ear,  that  there  is  really  no  reason  whatever  why  the 
innovating  statutes  of  our  day  should  be  regarded  with  any 
peculiar  severity,  or  be  subjected  to  any  particularly  stringent 
rules  of  interpretation,  because  they  abrogate  some  ancient 
rule  of  that  renowned,  but  somewhat  obsolete,  system  of  juris 
prudence.* 

These  ideas  have  indeed  been  already  partially  sanctioned 
by  judicial  authority.  The  Supreme  Court  of  Massachusetts 
has  held  this  language  :  "  It  is  said  that  statutes  made  in  dero- 
gation of  the  common  law  are  to  be  construed  strictly.  This 
is  true,  but  they  are  also  to  be  construed  sensibly,  and  with  a 
view  to  the  object  aimed  at  by  the  Legislature."  And  so  it 
was  held  that  a  statute  exempting  one  cow  and  one  swine  from 
exemption,  applied  to  the  animal  whether  alive  or  dead,  f  In 

*  The  New  York  Code  of  Procedure,  §46*7,    in  derogation  of  that  law  are  to  be  strictly 
says,  "  The  rule  of  common  law  that  statutes     construed,  has  no  application  to  this  act." 

f  Gibson  v.  Jenney,  15  Mass.  205,  203. 


STATUTES    STRICTLY   CONSTRUED.  275 

another  case  the  same  court  said :  "  The  rules  of  the  common 
law  are  not  to  be  changed  by  doubtful  implication  ; "  *  and  to 
this  extent  the  idea  of  the  sanctity  of  the  old  jurisprudence 
may  safely  be  admitted.  An  ancient  and  settled  system  ought 
not  to  be  overturned,  except  by  clear,  unambiguous,  and  per- 
emptory language. 

While  on  this  subject,  I  may  refer  with  advantage  to  the 
decisions  made  in  New  York  upon  the  statute  giving  landlords 
summary  proceedings  to  recovery  possession  of  premises  where 
tenants  hold  over.  Before  the  passage  of  that  statute  (13  April, 
1820),  the  remedy  where  the  tenant  held  over  was  expensive 
and  dilatory ;  but  in  one  case  under  the  law  it  was  held,  that 
this  being  a  summary  proceeding  in  derogation  of  the  common 
law,  the  statute  should  be  strictly  pursued.f  In  another  case, 
however,  it  was  said,  "  The  Legislature  have  prescribed  a  sum- 
mary proceeding  calculated  to  save  rights  of  parties,  and  insure 
a  speedy  decision.  This  remedial  act  must  be  construed  libe- 
rally, to  carry  into  effect  the  intent  by  suppressing  the  mischief, 
and  advancing  the  remedy."  £  Finally,  in  another  case,  it  was 
said  that  the  act  was  to  be  construed  liberally,  in  looking  to  the 
remedy  so  as  to  make  it  effectual,  but  strictly  and  rigidly  in  scan- 
ning the  proceedings  to  attain  that  remedy.  J  Whether  this  last 
nice  distinction  can  be  carried  out,  I  am  not  prepared  to  say ;  but 
these  cases  appear  to  furnish  a  good  illustration  of  the  confusion 
likely  to  result  from  the  assumption  of  power  to  construe  a 
statute  strictly  or  liberally  as  circumstances  seem  to  require. ^f 

Statutes  prescribing  Forms  of  Procedure,  or  Modes  of  Proof.— 
In  regard  to  these  the  maxim  holds  good,  Non  olservata  forma, 
infertur  adnullatio  actus.**     So,  where  a  statute  declared,  "  that 
the  form  of  proceedings  set  forth  in  the  schedule  should  be 
used,"  a  material  variance  from  the  form  was  held  fatal.f  f 

Of  the  statutes  of  the  class  now  under  consideration  the 
most  marked  are  the  statutes  of  frauds,  of  wills,  and  of  limita- 
tions. In  these  cases  the  proof,  or  the  procedure  required  by 
the  law  is  rigidly  exacted,  the  restriction  strictly  insisted  on 

*  Wilbur  v.  Crane,  13  Pick.  284,  290.  If  See  also  in  regard  to  this  statute,  Roach 

f  Farrington  v.  Morgan,  20  Wend.  207.  v.  Cozine,  9  Wend.  227. 
'  Lynde  v.  Noble,  ^0  J.  R.  80,  82.  **  2  In4.  388;  Dwarris,  611. 

Smith  v.  Moffat,  1  Barb.  S.  C.  R.  65.  ff  Davison  v.  Gill,  1  East,  64. 


276  STATUTE   OF  FRAUDS. 

without  regard  to  the  facts  or  the  hardship  of  the  case ;  and 
this  with  abundant  reason,  for  it  is  the  evident  intention  of 
these  statutes  to  prescribe  fixed  forms  or  rules  to  guard  against 
certain  abuses  likely  to  occur  from  the  absence  of  an  arbitrary 
and  peremptory  provision ;  and  a  liberal  or  equitable  construc- 
tion of  the  statute  would  completely  defeat  its  object  by  letting 
in  precisely  the  kind  of  testimony  that  the  act  means  to  ex- 
clude. The  New  York  statute  of  frauds  declares,  that  "  when- 
ever goods  are  sold  at  public  auction,  and  the  auctioneer  shall 
at  the  time  of  sale"  make  a  memorandum,  such  memorandum 
shall  be  considered  as  a  note  of  the  sale  for  the  purpose  of 
charging  both  parties.  It  has  been  held  that  this  provision 
must  be  strictly  construed  and  strictly  complied  with,  and  that 
the  memorandum  must  be  completed  by  the  proper  entries  in 
the  proper  book  as  soon  as  the  goods  are  struck  down  to  the 
purchaser,  and  before  the  auctioneer  enters  upon  any  other 
business  or  transaction  whatever.*  Such,  too,  is  the  general 
construction  of  acts  permitting  or  requiring  instruments  to  be  re- 
corded, and  giving  priority  according  to  the  date  of  the  registry. 
Efforts  have,  indeed,  repeatedly  been  made,  especially  in 
courts  of  equity,  to  get  rid  of  the  rigor  of  these  statutes, — and 
to  a  certain  extent  with  success,  as  we  shall  see  again  when  we 
come  to  consider  the  subject  of  the  equity  of  a  statute, — on  the 
ground,  in  regard  to  the  registry  acts,  that  enactments  which 
were  intended  to  prevent  frauds  should  never  be  used  as  a 
means  to  cover  them,  and  in  regard  to  the  statute  of  frauds, 
that  as  it  was  made  with  a  design  to  prevent  perjury  and  con- 
tradiction of  testimony,  the  cases  not  liable  to  those  mischiefs 
should  be  exempted  from  its  severe  operation.f  But  these  de- 
cisions have  been  greatly  regretted  as  breaking  in  upon  and 
diminishing  the  utility  of  these  statutes ;  and  the  sound  opinion 
would  seem  to  be  that  where,  for  the  very  purpose  of  prevent- 
ing frauds,  a  certain  form  or  mode  of  proof  is  prescribed  by  the 
Legislature,  the  form  or  mode  prescribed  shall  be  steadily  main- 
tained by  the  judiciary.  J 

*  Hicks  v.  Whitmore,  12  Wend.  548;  Goe-  Esp.  190;  Laragne  v.  Stanley,  3  Lev.  I; 

let  v.  Cowdrey,  1  Duer,  132.  Dwarris,  pp.  629,  630,  and  653. 

\  Cheval  v.  Nichols,  1  Str.  664.  Worse-  \  Doe  ex.  dcm.  Robiuson  v.  Allsop,  5  B. 

ley  v.  DeMattos,  1  Bnrr.  467;  Le  Neve  v.  Le  and  A.  142;  Doe  v.  Routledge,  Cowp.  712  ; 

Neve,  3  Atk.  646 ;  Knight  v.  Crockfof  d,  1  Dwarris,  p.  628,  el  seq. 


STATUTES  REGULATING   PRACTICE.  277 

To  this  same  class  belong  statutes  of  limitation,  or  statutes 
limiting  the  time  within  which  certain  actions  must  be  brought. 
These  statutes,  intended  to  guard  against  the  loss  of  evidence, 
and  the  mischiefs  arising  from  lapse  of  time,  are  to  be  strictly 
construed  without  any  reference  to  the  hardships  of  the  par- 
ticular case.  It  was  at  one  time  held  in  regard  to  these  stat- 
utes, that  .where  by  reason  of  the  defendant's  fraud  the  exist- 
ence of  a  cause  of  action  was  concealed,  it  would  furnish  an 
equitable  exception  to  the  express  language  of  the  statute. 
This  was  intimated  obiter  by  Lord  Mansfield  *  and  expressly 
held  in  Massachusetts ;  f  but  the  contrary  has  been  decided  in 
New  York ;  J  and  the  idea  that  implied  and  equitable  excep- 
tions, which  the  Legislature  has  not  made,  are  to  be  engrafted 
by  the  courts  on  a  statute  of  limitations  is  now  generally  aban- 
doned. I  So,  in  a  case  on  a  statute  of  this  class  the  Supreme 
Court  of  the  United  States  has  said,  "  Wherever  the  situation 
of  a  party  was  such  as  in  the  opinion  of  the  Legislature  to  fur- 
nish a  motive  for  excepting  him  from  the  operation  of  the  law, 
the  Legislature  has  made  the  exception.  It  would  be  going  far 
for  this  court  to  add  to  those  exceptions."  And  even  in  a  case 
where  a  survey  which  would  have  taken  the  case  out  of  the 
statute  was  prevented  by  positive  legislation,  the  lands  lying 
in  the  Indian  country,  it  was  held  no  excuse.^ 

So,  too,  it  has  been  repeatedly  held,  that  courts  have  no 
dispensing  power,  even  in  matters  of  practice,  when  the  Legis- 
lature has  spoken.  Thus,  where  a  statute  declares  that  a  judge 
at  chambers  may  direct  a  new  trial  if  application  is  made 
within  ten  days  after  judgment,  it  has  been  said  that  "he  can 
no  more  enlarge  the  time  than  he  can  legislate  in  any  other 
matter."  **  When  a  statute  fixes  the  time  within  which  an  act 
must  be  done,  the  courts  have  no  power  to  enlarge  it,  although 
it  relates  to  a  mere  question  of  practice.  So  where  an  appeal, 

*  Bree  v.  Holbeck,  Dong.  656.  382.     That  the   statute  of  limitations  runs, 

\  First  Massachusetts  Turnpike  v.   Field  though  the  cause  of  action  does  not  accrue 

et   al.  3  Mass.  201;  Homer  v.  Fish  et  al.  1  until  after  the  death  of  the  party  against  whom 

Pick.  435.  it  runs,  see  Tynan  v.  Walker,  35  Cal.  634.— 

J  Allen  v.  Miller,  17  Wend.  202.  EDITOR.] 
Cozier  v.  Ellis,  28  Mississippi,  730 ;  M'-          ^[  M*Iver  v.  Ragan,  2  Wheat.  25. 
Iver  v.  RagaH,  2  Wheat.  25.     [And  no  excep-          **  Seymour  v.  Judd,  2  Comst.  464 ;  Bleeck- 

tion  will  be  implied  in  favor  of  minors  or  mar-  er  v.  Wiseburn,  5  Wend.  136. 
ried  women.     Warfield  v.  Fox,  53  Penn.  St. 


278  STATUTES   REGULATING   PRACTICE. 

to  be  valid,  must  be  made  within  ten  days,  it  is  void  if  taken 
on  the  eleventh.*     So  when  an  act  declared  that  a  special 
.  jury,  when  struck,  shall  be  the  jury  for  the  trial  of  the  issue, 
and  the  defendant  had  a  special  jury  struck  and  afterwards 
wilfully  abandoned  it,  it  was  still  held  that  the  act  was  impera- 
tive, that  a  common  jury  could  not  try  the  case,  and  that  the 
plaintiff  should  have  summoned  the  special  jury,  f     Where  a 
statute  requires  an  oath  from  the  principal,  it  cannot  be  satis- 
fied by  the  oath  of  an  agent.  J     So,  statutes  enabling  creditors 
to  redeem,  as  against  prior  judgments,  must  be  complied  with 
strictly.     Where  an  act  authorizing  a  creditor  to  redeem  re- 
quired an  affidavit  of  the  amount  due  to  be  made  by  the  cred- 
itor or  his  agent,  it  was  held  the  affidavit  must  state  in  express 
terms  that  the  deponent  was  the  agent,  and  merely  naming  him 
as  such  in  the  affidavit  would  not  answer ;  and  that  the  affida- 
vit of  the  amount  should  also  show  that  the  agent  had  the 
means  of  knowledge,  and  state  the  amount  positively,  not  ac- 
cording to  his  belief.  |     In  the  municipal   corporation  act,  ^f 
where  the  words  are  "  shall  publish  not  later  than  two  of  the 
clock,"  a  publication  cannot  be  made  after  two  o'clock,  even  for 
the  purpose  of  correcting  an  error.  **     The  English  statute  of 
43  Eliz.  c.  2,  s.  1,  which  has  been  called  the  Magna  OJiarta  of 
the  poor,  declared  that  the  churchwardens  of  every  parish,  and 
four,  three,  or  two  householders,  should  be  nominated  by  the 
justices  of  the  peace  to  be  overseers  of  the  poor.     Motion  was 
made  to  quash  an  order  of  the  justices  appointing  j^i^  overseers. 
Usage  was  invoked  in  support  of  the  order,  but  the  facts  did 
not  sustain  the  alleged  custom  of  augmenting  the  number,  and 
after  a  careful  examination  of  the  statutes  in  pari  materia,  the 
number  was  held  imperative,  and  the  order  was  quashed,  ff 

*  Ex  parte  Ostrander,  1  Demo,  680,  681;  **  The  Queen  v.  Mayor  <fec.  of  Leeds,  11 

Seymour  v.  Judd,  2  Corns.  464;    Jackson  ex  A.  &  E.  512;  Dwarris,  p.  477.     "It  is  as  a 

dem.  Bleecker    v.    Wiseburn,  5  Wend.   136;  maxim,"  says  Mr.  Dwarris,  "generally  true, 

Barclay  v.  Brown,  7  Paige,  245;  Caldwell  v.  that  if  an  affirmative  statute,  which  is  intro- 

The  Mayor,  <fcc.  of  Albany,  9  Paige,  572.  ductory  of  a  new   law,  direct  a  thing  to  be 

f  Montague  v.  Smith,  17  Ad.  <fc  Ell.  N.  S.  done  in  a  certain  manner,  that  thing  shall  not, 

688.     A  special  jury  involves,  in  England,  a  even  although  there  are  no  negative  words, 

considerable  expense.  be  done  in  any  other  manner."    It  seems  to 

\  The  People  v.   Fleming,   2   Comstock,  me  this  decision  should  be  rather  referred  to 

484,  485.  the  present  branch  of  our  subject. 

I  Ex  parte  Bank  of  Monroe,  7  Hill,  177.  -f-f  Rex  v.  Loxdale,  1  Burr,  447. 

1  Hob.    298;  Sid.    56;  Stra.  1125;  2  T. 
Rep.  395. 


PENAL    STATUTES.  27ft 

To  this  rule,  that  statutes  prescribing  modes  of  procedure 
are  to  be  strictly  construed,  however,  there  exists  a  large  class 
of  exceptions,  of  which  we  shall  speak  when  we  consider  the 
cases  in  which  the  positive  language  of  enactments  is  treated 
as  directory  merely. 

Penal  Statutes. — In  regard  to  penal  statutes,  we  shall  find 
the  same  oscillation  of  judicial  opinion,  that  we  have  already 
had  occasion  to  observe  in  other  cases,  and  we  shall  notice  the 
same  difficulties  and  perplexities  that  must  ever  result  from 
any  attempt  by  the  judiciary  to  insert  exceptions  in  acts  of 
legislation,  or  in  other  words  practically  to  exercise  a  dis- 
cretionary control  over  legislative  provisions,  (a) 

(a)  Penal  Statutes  are  to  be  strictly  construed.  The  following  are  instances 
and  illustrations  of  the  application  of  this  rule,  there  being  in  each  case  a  penalty : 
"  Sale "  held  not  to  include  "  exchange."  Gunter  v.  Leckey,  30  Ala.  591.  An 
overseer  being  required  for  a  "plantation"  worked  by  slaves,  two  neighboring  tracts 
worked  together,  were  held  to  form  one  plantation.  State  v.  Whetstone,  13  La. 
Ann.  376.  "  Notice  "  construed  to  mean  personal  notice.  St.  Louis  v.  Goebel,  32 
Mo.  295.  "  Domestic  distilled  spirits,"  in  an  inspection  law  confined  to  those 
manufactured  within  the  State,  and  not  extended  to  those  refined  there.  Common- 
wealth v.  Giltinan,  64  Penn.  St.  100.  Where  the  master  of  a  steamboat  was  made 
subject  to  a  penalty  for  failing  to  deliver  any  letter  which  should  have  been  "  in  his 
care  or  within  his  power,"  it  was  held  that  there  must  be  knowledge  on  his  part, 
and  that  the  mere  possession  of  the  letter  by  the  clerk  of  his  boat  was  not  enough. 
U.  S.  v.  Beaty,  1  Hemps.  487. 

Statutes  prescribing  summary  mode  of  taking  property  against  owner's  consent 
must  be  strictly  construed.  Trumpler  v.  Bemerly,  39  Cal.  490;  Hopkins  v.  Mason, 
61  Barb.  469.  Penal  statutes  cannot  be  extended  beyond  the  grammatical  and 
natural  meaning  of  their  terms,  on  any  plea  of  a  failure  of  justice.  Remington  v. 
State,  1  Oregon,  281. 

Criminal  statutes  in  particular  are  inelastic ;  there  can  be  no  constructive  crimes ; 
the  offence  must  be  within  the  spirit  and  the  letter.  State  v.  Lovell,  23  Iowa,  804. 
And  must  be  construed  strictly  in  fatorem  vita,  e.  g.,  "attempt  at  insurrection" 
does  not  cover  an  attempt  to  incite  insurrection.  Gibson  v.  State,  38  Geo.  571. 
The  offence  must  be  within  both  the  spirit  and  the  letter.  Lair  v.  Killrner,  1  Dutch.  522. 
And  the  clause  defining  it  cannot  be  enlarged  by  the  clause  imposing  the  penalty. 
Elias  v.  Nightingale,  8  E.  &  B.  698.  Where  a  statute  is  silent  as  to  place  of 
imprisonment,  the  imprisonment  must  be  at  the  place  which  renders  it  the  less 
severe  punishment, — that  for  confining  persons  guilty  of  misdemeanor  rather  than 
that  for  persons  guilty  of  higher  crimes.  Horner  -.  State,  1  Oregon,  267. 

But  criminal  and  penal  statutes  are  not  to  be  so  strictly  construed  as  to  defeat 
their  obvious  intent,  e.  g. ,  under  clause  punishing  person  keeping  "  houses  "  of  ill- 
fame,  a  person  keeping  one  such  house  may  be  punished.  State  v.  Main,  31  Conn. 
572.  Acts  which  work  forfeiture  or  confiscation  are  to  be  strictly  construed,  but  at 
the  same  time  full  eflfect  should  be  given  to  the  language  and  to  the  legislative  will 


280  PENAL  STATUTES. 

The  ancient  rule  of  our  law,  often  reiterated,  was  that  penal 
•  statutes  were  to  be  construed  strictly.  "  The  general  words  of 
a  penal  statute  shall  be  restrained,"  says  Mr.  Dwarris,  "  for  the 
benefit  of  him  against  whom  the  penalty  is  inflicted."  *  And 
this  maxim  in  the  early  stages  of  English  jurisprudence  was 
•often  invoked  and  acted  upon  by  the  judges — partly,  no  doubt, 
from  a  humane  desire  to  mitigate  the  rigors  of  the  criminal  law 
as  it  then  stood.  Thus,  the  stat.  1  Ed.  VI,  c.  12,  having  enacted 
that  those  who  were  convicted  of  stealing  horses  should  not 

*  Dwarris,  p.  634. 

properly  expressed  by  it.  U.  S.  v.  Athens  Armory,  85  Geo.  344.  And  in  such 
statutes  words  will  not  be  confined  to  their  strict  technical  sense,  if  this  defeats  the 
obvious  intention  and  a  common  and  popular  sense  will  carry  out  that  intention: 
thus  "prize  and  capture"  were  not  confined  to  captures  at  sea.  U.  8.  v.  Athens 
Armory,  2  Abb.  U.  S.  R.  129.  Revenue  laws  imposing  penalties  are  to  be  construed 
so  as  to  carry  out  the  intent,  neither  strictly  nor  with  excess  of  liberality.  U.  S.  v. 
100  Bbls.  of  Spirits,  2  Abb.  U.  S.  R.  305.  The  rule  of  strict  construction  does  not 
mean  that  a  narrow  sense  must  be  given  to  the  words,  but  that  the  case  must  come 
within  the  words;  thus  "house"  includes  not  only  "abode"  but  "building." 
State  v.  Powers,  36  Conn.  77.  Nor  does  the  rule  mean  that  everything  is  to  be  so 
•construed  as  to  defeat  the  proceeding.  Bartlett  v.  Achey,  38  Penn.  St.  273.  Penal 
as  well  as  beneficial  statutes  are  to  be  so  construed  as  fairly  to  suppress  the  mischief 
and  advance  the  remedy.  Parkinson  v.  State,  14  Md.  134.  And  are  to  be  extended 
to  every  case  within  the  mischief,  if  within  the  words.  Hoffman  v.  State,  29  Ala. 
40.  And  words  will  even  be  rejected  as  surplusage,  when  they  defeat  the  obvious 
intent  U.  S.  v.  Stern,  5  Blatch.  C.  C.  512.  When  a  statute  is  in  the  nature  of  a 
police  regulation,  giving  a  remedy  for  a  private  injury  resulting  from  its  violation, 
and  also  imposing  fines  and  penalties  for  the  same  violation,  at  the  suit  of  the  public, 
the  former  provision  will  not  be  regarded  as  penal,  nor  the  recovery  as  a  penalty, 
unless  so  expressly  declared.  Pittsburg  &c.  R.  R.  v.  Methven,  21  Ohio,  N.  S.  586. 
Tor  a  case  where  two  forfeitures  imposed  by  the  same  statute,  and  for  the  same 
wrong,  one  of  the  animal  itself  running  at  large,  and  the  other  of  a  pecuniary  sum, 
Tvere  held  independent,  and  both  enforceable  by  the  same  person,  see  Town  v. 
Lamphere,  34  Vt.  365. 

A  statute  allowing  double  damages  is  penal  in  its  nature,  and  its  repeal,  after 
Terdict  but  before  judgment,  will  defeat  the  right  to  such  double  recovery,  no 
"  personal  equity  underlying  the  law  or  arising  from  it,"  appearing.  Bay  City,  &c. 
K.  R.  v.  Austin,  21  Mich.  390. 

A  penalty  implies  prohibition,  Bacon  v.  Lee,  4  Iowa,  490,  if  imposed  upon 
public  grounds.  D'Allex  v.  Jones,  37  E.  L.  &  E.  475. '  But  when  the  penalty  is 
•only  on  one  of  the  contracting  parties,  the  contract  not  being  declared  invalid  as  to 
the  other  party  may  be  enforced  by  him.  Watrous  v.  Blair,  32  Iowa,  58  (case  under 
a  Sunday  law). 

A  statute  prohibiting  attorneys  from  buying  any  bond,  etc.,  or  any  thing  in  action, 
with  the  purpose  of  bringing  suit  thereon,  is  penal,  and  is  to  be  strictly  construed, 
and  does  not  include  stock  in  a  corporation.  Ramsey  v.  Gould,  57  Barb.  398. 


PENAL   STATUTES.  281 

have  the  benefit  of  clergy,  the  judges  held  that  this  did  not 
extend  to  a  party  guilty  of  stealing  but  one  horse ;  and  a  new 
act  was  procured  for  that  purpose.*  So  it1  is  said,  if  the  law" 
be  that  for  a  certain  offence,  a  man  shall  lose  his  right  hand, 
and  the  offender  hath  had  his  right  hand  before  cut  off  in  the 
wars,  he  shall  not  lose  his  left  hand,  but  the  crime  shall  rather 
pass  unpunished,  than  the  letter  of  the  law  be  extended.f 

"  If  we  had  the  power  of  legislation,"  says  Lord  Kenyon, 
applying  the  penalties  for  non-residence,  "  perhaps  we  should 
think  it  proper  to  extend  the  penalties  created  by  the  statute 
of  Hen.  V11I,  c.  13,  to  all  benefices  with  cure  of  souls ;  but  as  it 
is  our  duty  to  expound  and  not  to  make  acts  of  Parliament, 
we  must  not  extend  a  penal  law  to  other  cases  than  those 
intended  by  the  Legislature,  even  though  we  think  they  come 
within  the  mischief  intended  to  be  remedied."  J  "  This  is  a 
penal  act,"  said  he  again,  when  considering  the  question, 
whether  tumblers  came  within  the  10  Oreo.  II,  c.  28,  "  and  we 
cannot  extend  it  to  entertainments  that  did  not  exist  when  the 
statute  was  made,  though  perhaps  it  is  desirable  that  the 
prohibitions  should  be  extended."  |  "  If  this  rule  is  violated," 
said  Best,  C.  J.,  "  the  fate  of  accused  persons  is  decided  by  the 
arbitrary  discretion  of  judges,  and  not  by  the  express  authority 
of  the  laws."  ^[  So,  if  a  penalty  given  by  a  statute,  is  to  be 
recovered  in  a  court  of  record,  this  can  only  be  done  in  one  of 
the  Superior  Courts  of  "Westminster ;  for,  being  a  penal  law,  it 
must  be  construed  strictly,  and  those  are  the  courts  in  which 
the  king's  attorney  is  supposed  to  attend.** 

And  the  general  rule  has  been  frequently  declared  in  this 
country.  So  in  New  York,  it  has  been  said  that  penal  statutes, 
in  declaring  what  acts  shall  constitute  an  offence,  and  in  pre- 
scribing the  punishment  to  be  inflicted,  are  certainly  to  be  con- 
strued rigorously.ft  So,  in  Massachusetts  also,  penal  statutes 
must  be  construed  strictly  according  to  the  intention  of  the 

*  Dwarris,  p.  364.  ^[  Fletcher  v.  Lord  Sondes,  3  Bing.  580. 

f  Dwarris,  p.  634  ;  Bacon's  Maxims,  58,  59.  **  Rex  v.  Hyinon,  7  T.  R.  536  ;    Wai  win 

'  \  Jenkinson   v.   Thomas,   4   T.    R.  666;  v.   Smith,!  Salk.  177,178;  Cro.  Eliz.  480; 

Dwarris,  p.  636.  Noy,  62  ;  Dwarris,  642. 

I  Rex  v.  Handy,  6  T.  R.  288 ;  see,  also,          f  f  The  Watervliet  and  Turnpike   Co.  v. 

Warne  v.   Varley,  6   T.   R.  443;  Martin  v.  M'Kean,  6  Hill,  616. 
Ford,  5  T.  R.  101. 


282  PENAL   STATUTES. 

Legislature  as  discovered  by  the  import  of  the  words,  and 
when  not  remedial,  are  not  to  be  extended  by  equitable  prin- 
ciples.* 

But  the  rule  that  statutes  of  this  class  are  to  be  construed 
strictly,  is  far  from  being  a  rigid  or  unbending  one ;  or  rather, 
it  has  in  modern  times  been  so  modified  and  explained  away, 
as  to  mean  little  more  than  that  penal  provisions,  like  all 
others,  are  to  be  fairly  construed  according  to  the  legislative 
intent  as  expressed  in  the  enactment;  the  courts  refusing  on 
the  one  hand  to  extend  the  punishment  to  cases  which  are  not 
clearly  embraced  in  them,  and  on  the  other,  equally  refusing 
by  any  mere  verbal  nicety,  forced  construction,  or  equitable 
interpretation,  to  exonerate  parties  plainly  within  their  scope. 
Indeed,  this  was  said  in  England  at  an  early  day.  "It  is  not 
true,"  said  Mr.  J.  Buller,  "  that  the  court  in  the  exposition  of 
penal  statutes  are  to  narrow  the  construction.  We  are  to  look 
to  the  words  in  the  first  instance,  and  where  they  are  plain,  we 
are  to  decide  on  them.  If  they  be  doubtful,  we  are  then  to 
have  recourse  to  the  subject-matter ;  but  at  all  events,  it  is 
only  a  secondary  rule."  f 

So  the  Supreme  Court  of  the  United  States  has  said,  "In 
expounding  a  penal  statute,  the  court  certainly  will  not  extend 
it  beyond  the  plain  meaning  of  its  words  ;  for  it  has  been  long 
and  well  settled,  that  such  statutes  must  be  construed  strictly. 
Yet  the  evident  intention  of  the  Legislature  ought  not  to  be 
defeated  by  a  forced  and  overstrict  construction.^  We  are  to 
ascertain  the  true  legislative  intent  of  the  words  used ;  and 
that  sense  being  once  ascertained,  courts  of  justice  are  bound 
to  give  effect  to  that  intent,  and  are  not  at  liberty  to  fritter  it 
upon  metaphysical  niceties."  |  "  We  are  undoubtedly  bound," 
says  Mr.  Justice  Story,  "to  construe  penal  statutes  strictly,  and 

*  Melody  v.  Reab,  4  Mass.  473.  without  the  vote  being  given.     3  Burr.  1235  ; 

f  The   King  v.  Inhabs.  of  Hodnett,  1   T.  Dwarris,  p.  635. 

R.  96,  101.     The  enactment  that  made  killing  J  U.  S.  v.  Morris,  14  Peters,  464.     Inclict- 

a  master,  treason,  was  extended  so  as  to  include  ment  under  the   acts  to  prohibit  the  slave 

a  mistress.     Hard.  20.8  ;  Plowd.  86  ;  Dwarris,  trade.     See  also  on  this  same  point  American 

635.     So,  under  the  English  bribery  acts,  to  Fur  Company  v.  The  United  btates,  2  Peters, 

satisfy  the  term  "  procuring,"  it  is  necessary  358.     Indictment  for  selling  ardent  spirits  to 

that  the  vote  should  be  actually  given ;  but  Indians. 

as    to  "corrupting,"  that  is  not  necessary;  ||  The   Schooner  Nymph,  1    Sumner,  516, 

the  corruption  has  been  held  to  be  complete  518;   where   "trade"   was  held   to  include 

"  cod-fishery." 


PENAL   STATUTES.  283 

not  to  extend  them  beyond  their  obvious  meaning  by  strained 
inferences.  On  the  other  hand,  we  are  bound  to  interpret 
them  according  to  the  manifest  import  of  the  words,  and  to 
hold  all  cases  which  are  within  the  words  and  the  mischiefs, 
to  be  within  the  remedial  influence  of  the  statute."  *. 

And  the  rule  has  been  coupled  with  this  reasonable  modifi- 
cation in  a  large  number  of  the  tribunals  of  this  country.  So  in 
New  Hampshire,  it  has  been  said,  that  by  the  phrase  strict  con- 
struction, as  applied  to  penal  statutes,  it  is  not  meant  that  the 
judges  will  disregard  the  intention  of  the  Legislature ;  it  is  only 
intended  that  where  there  is  a  doubt,  the  judiciary  will  not  so 
construe  them  as  to  a  inflict  a  punishment  which  the  Legisla- 
ture may  not  have  intended.  The  strict  construction  is  only  to 
be  applied  where  the  law  is  reasonably  open  to  question.f  So 
in  New  York  it  is  said  that,  "  The  rule  that  penal  statutes  are 
to  be  construed  strictly  when  they  act  on  the  offender  and  inflict 
a  penalty,  admits  of  some  qualification.  In  the  construction  of 
statutes  of  this  description  it  has  been  often  held,  that  the  plain 
and  manifest  intention  of  the  Legislature  ought  to  be  regarded. 
A  statute  which  is  penal  to  some  persons,  provided  it  is  benefi- 
cial generally,  may  be  equitably  construed."^  So  again,  "  Al- 
though a  penal  statute  is  to  be  construed  strictly,  the  court  are 
not  to  disregard  the  plain  intent  of  the  Legislature  ;  and  it  is  well 
settled  that  a  statute  which  is  made  for  the  good  of  the  pub- 
lic, ought,  although  it  be  penal,  to  receive  an  equitable  con- 
struction.") 

In  a  case  in  Massachusetts,  Parker,  C.  J.,  said, — 

In  this,  as  in  all  other  statutes,  if  there  be  any  ambiguity  of  expression,  the  \ 
meaning  and  intent  of  the  Legislature  must  be  sought  for  in  the  statute  itself,  if 
from  a  consideration  of  other  parts  of  it,  it  is  capable  of  explanation, — and  from   . 
other  statutes  relating  to  the  same  subject,  if  it  be  necessary  to  resort  to  any 

*  The  Schooner  Industry.  Information  "We  may  remark  that  every  penal  statute 

for  landing  goods  without  a  permit,  under  the  must  be  intended  to  be  "  generally  beneficial ;" 

revenue  laws.  1  Gall.  114,  117,  118.  See  the  only  ground  on  which  punishments  or 

U.  S.  v.  Athens  Armory,  35  Geo.  344 ;  as  to  penalties  can  be  inflicted  on  individuals  is, 

confiscation,  Acts  of  Aug.  6,  1861,  and  July  that  the  community  is  thereby  to  be  generally 

17,  1862.  benefited. 

f  Wilton  v.  "Wentworth,  5  Foster,  K  H.  |  The  People  v.  Bartow,  6  Cowen,  290, 

247;  Fairbanks  v.  Antrim,  2  N.  H.  105;  293;  Indictment  for  violating  the  banking 

Woodbury  v.  Thompson,  3  N.  H.  194;  Pike  law.  And  here  again  we  may  inquire,  whether 

v.  Jenkins,  12  N.  H.  255.  any  penal  statute  can  be  regarded  as  not  made 

$  Sickles  v.  Sharp,  13  J.  R.  498,  499.  for  "the  good  of  the  public ?' 


284  PENAL   STATUTES. 

thing  extrinsic  in  order  to  obtain  an  explanation.  If  a  statute,  creating  or  in- 
creasing the  penalty,  be  capable  of  two  constructions,  undoubtedly  that  con- 
struction which  operates  in  favor  of  life  or  liberty  is  to  be  adopted ;  but  it  is 
not  justifiable  in  this,  any  more  than  in  any  other  case,  to  imagine  ambiguities 
merely  that  a  lenient  construction  may  be  adopted.  If  such  were  the  privilege 
of  a  court,  it  would  be  easy  to  obstruct  the  public  will  in  almost  every  statute 
enacted  ;  for  it  rarely  happens  that  one  is  so  precise  and  exact  in  its  terms, 
as  to  preclude  the  exercise  of  ingenuity  in  raising  doubts  about  its  construc- 
tion.* 

So,  where  a  statute  provided  that  if  any  person  not  being 
authorized  by  the  selectmen  of  any  town  in  the  commonwealth, 
should  dig  up  any  human  body,  should  be  prosecuted,  <fec.,  it 
was  held  to  be  sufficient  to  aver  and  prove  that  the  defendant 
was  not  authorized  by  the  selectmen  of  the  town  where  the  body 
had  been  buried ;  and  it  was  said  by  Parker,  C.  J.,  delivering 
the  opinion  of  the  court : — 

The  question  in  this  case  arises  from  an  unfortunate  obscurity  in  the  terms 
of  the  statute  on  which  the  indictment  is  founded.  Taken  strictly,  without  re- 
ference to  subject-matter  and  the  manifest  intention  and  object  of  the  Legislature, 
it  would  appear  that  in  order  to  sustain  an  indictment  on  the  statute,  it  must 
be  averred  and  proved  that  the  board  of  health,  or  selectmen,  of  no  town  in  the 
commonwealth  had  given  license  to  do  the  act  complained  of.  The  consequence 
would  be,  as  oral  testimony  alone  can  be  admitted  on  criminal  trials,  of  facts 
provable  by  witnesses,  that  the  officers  of  every  town,  to  the  number  of  three  or 
four  hundred,  must  be  summoned  and  give  their  personal  attendance  in  the  court 
Avhere  such  prosecution  is  pending.  We  hazard  nothing  in  saying,  that  the  Legis- 
lature never  intended  such  an  absurdity. 

But  it  is  said  that  penal  statutes  admit  of  no  latitude  of  construction  ;  that 
they  are  to  be  taken  strictly,  word  for  word,  let  the  consequences  be  what  they 
may.  It  is  true,  it  is  so  laid  down  as  a  general  rule  ;  and  the  reason  is,  that  the 
court  shall  not  be  allowed  to  make  that  an  offence  which  is  not  made  so  by  the 
legislative  enactment.  But  the  rule  does  not  exclude  the  application  of  com- 
mon sense  to  the  terms  made  use  of  in  the  act,  in  order  to  avoid  an  absurdity 
which  the  Legislature  ought  not  to  be  presumed  to  have  intended.  There  are 
cases  which  show  this,  although  precedents  would  not  be  required  to  sustain  so 
reasonable  a  doctrine.  Bac.  Abr.  statute  i,  9 ;  Heydon's  Case  3  Coke,  7  ;  Rex 
v.  Gage,  8  Mod.  65  ;  Plowd.  86;  and  the  Soldier's  Case,  Cro.  Car.  71— all  of 
which  are  cited  by  Bacon — go  to  show  that  even  penal  statutes,  though  to  be 
construed  strictly,  as  the  general  rule,  yet  are  to  receive  such  a  construction  as 
will  conform  to  the  intention  of  the  Legislature  ;  some  of  them  are  stronger  cases 
than  this,  f 

*  Commonwealth  v.  Marton,  17  Mass.  359,  \  Commonwealth  v.  Loring,  8  Pick.  370, 

362,  363.  374. 


PENAL  STATUTES.  285 

Where  a  statute  provided  that  if  any  master  or  other  officer 
should,  without  justifiable  cause,  &c.,  beat,  <fec.,  any  one  of  the 
crew,  he  should  be  punished  by  fine,  <fec.,  it  was  held  that  the 
word  crew  should  be  held  to  include  the  officers,  and  was  not 
restricted  to  the  common  seamen ;  and  Mr.  Justice  Story  said — 

Now,  I  do  not  think  any  thing  material  in  the  construction  of  this  statute 
can  turn  upon,  the  rule  so  ably  and  strenuously  expounded  at  the  bar,  that  penal 
statutes  are  to  be  construed  strictly.  I  agree  to  that  rule  in  its  true  and  sober 
sense ;  and  that  is,  that  penal  statutes  are  not  to  be  enlarged  by  implication, 
or  extended  to  cases  not  obviously  within  their  words  and  purport.  But  where 
the  words  are  general,  and  include  various  classes  of  persons,  I  know  of  no 
authority,  which  would  justify  the  court  in  restricting  them  to  one  class,  or  in 
giving  them  the  narrowest  interpretation,  where  the  mischief  to  be  redressed 
by  the  statute  is  equally  applicable  to  all  of  them.  And  where  a  word  is  used 
in  a  statute  which  has  various  known  significations,  I  know  of  no  rule  that  re- 
quires the  the  court  to  adopt  one  in  preference  to  another,  simply  because  it  is 
more  restrained,  if  the  objects  of  the  statute  equally  apply  to  the  largest  and 
broadest  sense  of  the  word.  In  short,  it  appears  to  me  that  the  proper  course 
in  all  these  cases,  is  to  search  out  and  follow  the  true  intent  of  the  Legislature, 
and  to  adopt  that  sense  of  the  words  which  harmonizes  best  with  the  context,  and 
promotes  in  the  fullest  manner  the  apparent  policy  and  objects  of  the  Legislature.* 

In  another  case  the  same  learned  judge  said, — 

Penal  statutes  are  to  be  construed  strictly ;  and  cases  within  the  like  mis- 
chief are  not  to  be  drawn  within  a  clause  imposing  a  prohibition  or  forfeiture, 
unless  the  words  clearly  comprehend  the  case.  *  *  But  in  construing  a 
statute,  we  are  to  take  into  consideration  all  the  provisions  thereof,  and  to  look 
to  all  the  objects  and  the  entire  intent  of  the  statute.  If,  then,  a  clause  is  found 
in  one  section  which  in  its  general  language  and  import  is  equally  as  applicable 
to  other  sections  and  provisions  of  the  same  act  as  it  is  to  the  very  section  in 
which  it  is  found,  if  the  true  intent  and  policy  of  the  act  will  be  best  promoted 
by  reading  it  as  applicable  to  all  those  sections,  and  if  public  mischiefs  equally 
within  the  scope  of  the  statute  would  be  thereby  prevented,  and  upon  a  differ- 
ent construction  those  mischiefs  would  be  left  without  redress, — there  certainly 
is  very  strong  ground  to  say  that  the  clause  ought  to  be  so  interpreted  as  to 
suppress  the  mischiefs,  and  not  promote  or  protect  them ;  that  as  its  language 
is  appropriate,  so  it  shall  be  construed  as  intended  to  include  them.f 

The  subject  has  been  well  discussed  by  Mr.  Justice  Living- 
ston, on  the  first  circuit.  He  used  this  language  : 

*  U.  S.  v.  Winn,  3  Sumner,  209,  211,  212.  ante,  p.  259,  note,^[  Henry  v.  Tilson,  17  Ver- 

\  The  schooner  Harriet,  1  Story,  pp.  251,  mont,  479,  where  a  word  in  one  section  of  a 

255,  256.     Case  under  the  act  giving  bounties  statute  was  inserted  by  construction  in  an- 

to  vessels  licensed  for  the  cod-fisheries.     See  other. 


286  PENAL  STATUTES. 

But  while  it  is  said  that  penal  statutes  are  to  receive  a  strict  construction,  noth- 
ing more  is  meant  than  that  they  shall  not,  by  what  may  be  thought  their  spirit 
or  equity,  be  extended  to  offences  other  than  those  that  are  specially  and  clearly 
described  and  provided  for.  A  court  is  not,  therefore,  as  the  appellant  sup- 
poses, precluded  from  inquiring  into  the  intention  of  the  Legislature.  However 
clearly  a  law  be  expressed,  this  must  ever,  more  or  less,  be  a  matter  of  inquiry. 
A  court  is  not,  however,  permitted  to  arrive  at  this  intention  by  mere  conjec- 
ture, but  it  is  to  collect  it  from  the  object  which  the  Legislature  had  in  view, 
and  the  expressions  used,  which  should  be  competent  and  proper  to  apprise  the 
community  at  large  of  the  rule  which  it  is  intended  to  prescribe  for  thar  gov- 
ernment. For  although  ignorance  of  the  existence  of  a  law  be  no  excuse  for 
its  violation,  yet  if  this  ignorance  be  the  consequence  of  an  ambiguous  or  ob- 
scure phraseology,  some  indulgence  is  due  to  it.  It  should  be  a  principle  of 
every  criminal  code,  and  certainly  belongs  to  ours,  that  no  person  be  adjudged 
guilty  of  an  offence  unless  it  be  created  and  promulgated  in  terms  which  leave 
no  reasonable  doubt  of  their  meaning.  If  it  be  the  duty  of  a  jury  to  acquit 
where  such  doubts  exist  concerning  a  fact,  it  is  equally  incumbent  on  a  judge 
not  to  appply  the  lawr  to  a  case  where  he  labors  under  the  same  uncertainty  as 
to  the  meaning  of  the  Legislature.  If  this  be  involved  in  considerable  difficulty, 
from  the  use  of  language  not  perfectly  intelligible,  unusual  circumspection  be- 
comes necessary,  especially  if  the  consequences  be  so  penal  as  scarcely  to  ad- 
^  mit  of  aggravation.  When  the  sense  of  a  penal  statute  is  obvious,  consequences 
are  to  be  disregarded  ;  but  if  doubtful,  they  are  to  have  their  weight  in  its  in- 
.  terpretation.  It  will  at  once  be  conceded  that  no  man  should  be  stripped  of  a 
very  valuable  property — perhaps  of  his  all — be  disfranchised  and  consigned  to 
public  ignominy  and  reproach,  unless  it  be  very  clear  that  such  high  penalties 
have  been  annexed  by  law  to  the  act  which  he  has  committed.  If  these  prin- 
ciples be  correct,  as  they  are  deemed  to  be,  a  court  has  no  option  where  any 
considerable  ambiguity  arises  on  a  penal  statute,  but  is  bound  to  decide  in 
favor  of  the  party  accused.  "It  is  more  consonant  to  the  principle  of  liberty," 
says  an  eminent  English  judge,  "  that  a  court  should  acquit  when  the  Legis- 
lature intended  to  punish,  than  that  it  should  punish  when  it  was  intended  to 
discharge  with  impunity."  * 

The  rule  and  the  qualification  have  been  very  ably  considered 
by  the  Supreme  Court  of  the  United  States.  The  8th  section  of 
an  act  of  the  United  States  (30th  April,  1790,  c.  36)  provided  for 
the  punishment  of  certain  crimes  committed  upon  the  high  seas, 
or  in  any  river,  haven,  basin,  or  lay,  out  of  the  jurisdiction  of 
any  particular  State.  The  12th  section  provided  for  the  punish- 
ment of  manslaughter  committed  upon  the  high  seas;  man- 
slaughter not  being  mentioned  in  the  8th  section.  Upon  an 
indictment  for  manslaughter  committed  on  board  an  American 

*  Schooner  Enterprise,  1  Paine's  Reports,  pp.  33,  34. 


PENAL    STATUTES.  287 

vessel,  in  the  river  Tigris,  in  China,  thirty-five  miles  from  its 
mouth,  it  was  held  that  the  United  States  had  no  jurisdiction 
under  the  12th  section;  and  the  court  said,— 

The  rule  that  penal  laws  are  to  be  construed  strictly,  is  perhaps  not  much 
less  old  than  construction  itself.  It  is  founded  on  the  tenderness  of  the  law  for 
the  rights  of  individuals  ;  and  on  the  plain  principle,  that  the  power  of  punish- 
ment is  vested  in  the  Legislature,  not  in  the  judicial  department.  It  is  the 
Legislature,  not  the  court,  which  is  to  define  a  crime  and  ordain  its  punish- 
ment. 

It  is  said  that,  notwithstanding  this  rule,  the  intention  of  the  law-maker  must 
govern  in  its  construction  of  penal,  as  well  as  other  statutes.  This  is  true.  But 
this  is  not  a  new,  independent  rule,  which  subverts  the  old.  It  is  a  modification 
of  the  ancient  maxim,  and  amounts  to  this,  that  though  penal  laws  are  to  be  con- 
strued strictly,  they  are  not  to  be  construed  so  strictly  as  to  defeat  the  obvious 
intention  of  the  Legislature.  The  maxim  is  not  to  be  so  applied  as  to  narrow 
the  words  of  the  statute  to  the  exclusion  of  cases  which  those  words,  in  their 
ordinary  acceptation,  or  in  that  sense  in  which  the  Legislature  has  obviously 
used  them,  would  comprehend.  The  intention  of  the  Legislature  is  to  be  col- 
lected from  the  words  they  employ.  Where  there  is  no  ambiguity  in  the 
words,  there  is  no  room  for  construction.  The  case  must  be  a  strong  one,  in- 
deed, which  would  justify  a  court  in  departing  from  the  plain  meaning  of 
words,  especially  in  a  penal  act,  in  search  of  an  intention  which  the  words 
themselves  did  not  suggest.  To  determine  that  a  case  is  within  the  intention  of 
a  statute,  its  language  must  authorize  us  to  say  so.  It  would  be  dangerous 
indeed,  to  carry  the  principle  that  a  case  which  is  within  the  reason  or  mischief 
of  a  statute,  is  within  its  provisions  so  far  as  to  punish  a  crime  not  enumerated 
in  the  statute,  because  it  is  of  equal' atrocity,  or  of  kindred  character,  with  those 
which  are  enumerated.  If  this  principle  has  ever  been  recognized  in  expound- 
ing criminal  law,  it  has  been  in  cases  of  considerable  irritation,  which  it  would 
be  unsafe  to  consider  as  precedents  forming  a  general  rule  for  other  cases.* 

We  admit  that  it  is  extremely  improbable,  that  Congress  could  have  in- 
tended to  make  those  differences  with  respect  to  place,  which  their  words  im- 
port. But  probability  is  not  a  guide  which  a  court  in  construing  a  penal  stat- 
ute can  safely  take.  We  can  conceive  no  reason  why  other  crimes  which  are 
not  comprehended  in  this  act,  should  not  be  punished ;  but  Congress  has  not 
made  them  punishable,  and  this  court  cannot  enlarge  the  statute. 

These  decisions,  as  I  have  said,  materially  modify  the  old 
rule  that  penal  statutes  are  to  be  construed  strictly.  The  more 
correct  version  of  the  doctrine  appears  to  be  that  the  statutes, 
of  this  class,  are  to  be  fairly  construed  and  faithfully  applied 
according  to  the  intent  of  the  Legislature,  without  un warrant- 

*  U.  S.  v.  Wiltberger,  5  Wheat.  76,  95,  96,  105. 


288  REVENUE  LAWS 

able  severity  on  the  one  hand,  or  equally  unjustifiable  lenity  on 
the  other :  in  cases  of  doubt  the  courts  inclining  to  mercy. 

Revenue  Laws. — In  regard  to  the  laws  for  the  collection  of 
the  revenue,  we  find  the  same  contradictions  that  we  have  al- 
ready noticed  in  other  cases,  as  to  whether  they  are  to  be  strict- 
ly or  liberally  construed,  growing  out  of  the  different  light  in 
which  they  may  be  regarded, — that  is,  as  laws  imposing  penal- 
ties and  forfeitures,  of  a  highly  important  character,  on  which 
the  operations  of  Government  mainly  depend,  or  as  laws 
intended  to  regulate  the  great  subject  of  commercial  inter- 
course, and  chiefly  to  regulate  the  operations  of  commercial 
men.  (a) 

In  England,  it  has  been  said  that  statutes  made  for  the  ad- 
vancement of  trade  and  commerce,  and  to  regulate  the  conduct 
of  merchants,  ought  to  be  perfectly  clear  and  intelligible  to 
persons  of  their  description,  and  that  otherwise  they  would  be 
mere  snares.  Where  clauses,  therefore,  are  obscure,  the  courts 
will  lean  against  forfeitures ;  and,  in  this  view,  the  ship  regis- 
try acts,  so  far  as  they  apply  to  defeat  titles  and  to  create  for- 
feitures, are  to  be  construed  strictly  as  penal  laws.  "The 
Legislature,"  says  Heath,  J.,  "  is  ever  at  hand  to  explain  its  own 
meaning,  and  to  express  more  clearly  what  has  been  obscurely 
expressed."  * 

In  the  same  spirit  in  this  country,  on  the  first  circuit  in  con- 
struing a  revenue  law,  Mr.  J.  Story  said,  "  Laws  imposing  du- 
ties are  never  construed  beyond  the  natural  import  of  the  lan- 
guage ;  and  duties  are  never  imposed  upon  the  citizen  upon 

*  Hubbard  v.  Johnson,  3  Taunt.  177;  Dwarris,  p.  641. 

(a)  Statutes  for  raising  revenue  are  to  be  liberally  construed  ;  what  is  implied  is  as 
much  a  part  of  them  as  what  is  expressed.  U.  S.  v.  Hodson,  10  Wall.  395.  Tax 
statutes  are  to  be  so  construed  as  to  carry  out  their  obvious  intent.  Cornwall  v.  Todd, 
88  Conn.  443.  Revenue  and  duty  acts  are  neither  penal  nor  remedial,  and  are  to  be 
construed  according  to  their  true  import  and  meaning.  Davy  v.  Morgan,  56  Barb. 
218.  For  a  ease  where  certain  provisions  of  the  internal  revenue  laws  were  held  to 
be  strictly  construed,  see  Crosby  v.  Brown,  60  Barb.  548.  Ordinarily  in  tariff  acts 
terms  are  to  have  their  commercial  signification,  but  if  it  appears  that  Congress  in- 
tended something  different,  that  intent  must  control.  Roosevelt  v.  Maxwell,  3  Blatch. 
C.  O.  891.  In  cases  of  serious  ambiguity  or  doubtful  classification  in  a  revenue  act, 
it  seems  the  construction  should  favor  the  importer,  as  duties  are  not  to  be  imposed 
upon  vague  or  doubtful  interpretations.  Powers  v.  Barney,  5  Blatch.  C.  C.  202. 


REVENUE  LAWS.  289 

doubtful  interpretations  ;  for  every  duty  imposes  a  burthen  on 
the  public  at  large,  and  is  construed  strictly,  and  must  be  made 
out  in  a  clear  and  determinate  manner  from  the  language  of  the 
statute."  * 

The  Supreme  Court  of  the  United  States  has  said  on  this 
subject, — 

In  one  serise,  every  law  imposing  a  penalty  or  forfeiture  may  be  deemed  a 
penal  law  ;  in  another  sense,  such  laws  are  often  deemed,  and  truly  deserve  to 
be  called,  remedial.  It  must  not  be  understood,  that  every  law  which  imposes 
a  penalty  is  therefore,  legally  speaking,  a  penal  law,  that  is,  a  law  which  is  to 
be  construed  with  great  strictness  in  favor  of  the  defendant.  Laws  enacted  for 
the  prevention  of  fraud,  for  the  suppression  of  a  public  wrong,  or  to  effect  a 
public  good,  are  not  in  the  strict  sense  penal  acts,  although  they  may  inflict  a 
penalty  for  violating  them.  It  is  iu  this  light  we  view  the  revenue  laws,  and 
we  would  construe  them  so  as  most  effectually  to  accomplish  the  intention  of  the 
Legislature  in  passing  them."  f 

And  again,  on  the  first  circuit,  Mr.  Justice  Story  has  used 
this  language : — 

Eevenue  and  duty  acts  are  not  in  the  sense  of  the  law  penal  acts,  and  are 
not,  therefore,  to  be  construed  strictly.  Nor  are  they,  on  the  other  hand,  acts 
in  furtherance  of  private  rights  and  liberty,  or  remedial,  an<]  therefore  to  be 
construed  with  extraordinary  liberality.  They  are  to  be  construed  according 
to  the  true  import  and  meaning  of  their  terms ;  and  when  the  legislative  inten- 
tion is  ascertained,  that  and  that  only  is  to  be  our  guide  in  interpreting  them. 
We  are  not  to  strain  to  reach  cases  not  within  their  terms,  even  if  we  might 
Conjecture  that  public  policy  might  have  reached  those  cases ;  nor,  on  the  other 
hand,  are  we  to  restrain  their  tirms  so  as  to  exclude  cases  clearly  within  them, 
simply  because  public  policy  might  possibly  dictate  such  an  exclusion. J 

These  decisions  show  the  gradual  tendency  of  the  judicial 
mind  to  disavow  and  renounce  any  right  to  construe  statutes  ac- 
cording to  considerations  of  policy  or  hardship,  and  to  recognize 
the  duty  of  conforming  on  all  occasions  to  the  will  of  the  law- 
making  body.  I 

*  Adams  v.  Bancroft,  3  Sumner,  386,  387.          '*  When  a  etatote  gives  a  forfeiture  or»  pen- 

f  Taylor  v.  The  U.  S.  3   Howard,  109.     It  ahy  against  him  who  wrongfully  detains  the 

maybe  permitted  us   to  ask  wi:h  deference,  property  of  Another,  or  dispossesses  him  of  his 

whether  all  laws  must  not  be  supposed  intend-  duty  or  intere  t,  he  th  it  lias  the  wr>ng  shall 

ed  to"eff<ct  a  public    go<-d;"  and  whether  have  the  forfeiture  or  penalty,  and  shall  have 

the  effort  "  to  accomplish  the  int.;ntion  of  the  an  action  therefor  on  the  statute  at  co  nmon 

Legislature  "  should  be  any  more  earnest  in  law,  and  the  king  shall  not  have  the  forfeit- 

this  case  than  in  all  others.  ure." — Co.  L>t.t.  159  a. 

tU.  S.  v.  Breed  et  al.   1  Sumner,    159  160.  '•  If  an  act  of  Parli  merit  give  a  forfeiture 

Some  rules  as  to  forfeiture  uiay  be  here  for  a  collateral  thit>ir»  the  king  shall  have  it: 

noticed :  but  where  it  is  given  in  lieu  of  property  and 
19 


290  USURY   LAWS. 

Usury  Laws. — "Before  the  statute  of  Henry  VIII" 
Henry  VIII,  c.  9),  says  Lord  Mansfield,*  "  all  interest  on  money 
lent  was  prohibited  by  the  canon  law,  as  it  is  now  in  Roman 
Catholic  countries."f  This  statute  was  repealed  in  the  reign  of 
Edward  VI,  but  re-enacted  in  the  reign  of  Elizabeth, J  and, 
since  that  period,  with  occasional  modifications,  has  retained  its 
place  in  England,  and  obtained  a  footing,  more  or  less  secure,  in 
this  country. 

There  are  few  things  which  better  show  the  power  claimed 
by  the  courts  over  statutes,  than  the  course  pursued  by  them  in 
regard  to  these  laws.  The  act  of  12  Anne,  §  2,  c.  16,  declared 
all  securities  and  contracts  affected  by  usury,  void.  But  when 
the  courts  of  equity  were  appealed  to  for  aid  by  a  borrower  on 
usury,  they  did  not  hesitate  to  brand  the  statute  as  inequitable, 
if  not  dishonest,  and,  declaring  that  he  who  sought  equity  must 
do  equity,  refused  relief  except  upon  the  terms  of  payment  of 
the  principle  and  legal  interest.!  The  courts  of  common  law 
followed  in  part  in  the  same  track,  and  when  their  discretionary 
powers  were  appealed  to,  refused  interference  except  on  the 
same  terms. ^[  Finally,  however,  the  King's  Bench  came  to  the 
true  rule  on  the  subject,  and  in  compliance  with  and  obedience  to 
the  statute,  treated  usurious  contracts  as  void  for  all  purposes.**  I 
have  already  had  occasion  to  refer  to  the  course  pursued  on  this 
subject  in  our  tribunals,  and  have  noticed  the  fact  that  in  the 
latter  decisions  the  courts  appear  disposed  to  give  full  effect  to 
the  legislative  will. ft 

In  construing  a  statute  of  this  class  in  Massachusetts,  the 
following  language  has  been  held.  It  is  valuable,  as  showing 
the  curious  niceties  into  which  the  courts  have  been  drawn,  in 
their  efforts  to  explain  and  to  methodize  their  notions  of  strict 
and  liberal  construction  : — 

interest,  it  shall   go  to  the  person  injured,  lances,  estates  tail  are  comprehended." — Jenk. 

Where,  however,  it  is  giveu  for  a  crime,  the  287,  pi    21  ;  H"b.  334;    Dwai-ris,  641. 

king  shall  have  the  forfeiture,  though  he  be  *  Lowe  v.  Waller,  2  Douglas,  736,  740. 

not  named." — 13  Vin.  Abrnt.  tit.  Forfeiture.  f  See  also  Renss.  Glass  Factory  v.  Reid,  5 

"The  words   'shall  forfeit'    vests  only  a  Cow.  687  and  604. 

right  or  title,  and  not  the  freehold  or  deed,  or  |  Dwarris,  p.  65. 

in  law,  without  an  office  to  find  the  certainty  ||  Benfield  v.   Solomons,  9  Ves.  jun.    84  : 

of  the  land." — PI.  Com.  486.  Scrivener,  exparte,  3  Ves.  and  B.  14. 

"  Where  a  statute  gives  a  forfeiture  '  of  all  ^[  Hindle  v.  O'Brien,  ]  Taunt.  413. 

inheritance,'  it  does  not  extend  to  an  estate  **  Koberts   v.    Goff,  4   B.   and  Aid.  92; 

tail;  but  where  it  is  '  of  all  manner  of  inheri-  Dwarris,  p.  855. 

ff  Ante,  p.  185. 


STATUTES  CREATING  MONOPOLIES.  291 

General  statutes  or  written  laws  of  the  government,  are  usually  arranged  under 
three  great  divisions  :  Declaratory,  which  are  expressive  of  the  common  law  ; 
Remedial,  which  are  required  in  consequence  of  the  errors  in  human  judgments, 
or  are  rendered  necessary  by  the  various  changes  which  are  constantly  taking 
place  as  the  community  enlarges  and  its  concerns  increase  ;  Penal,  or  acts  for 
the  prevention  and  punishment  of  offences  ; — and  in  ascertaining  their  meaning 
it  soon  grew  to  be  an  axiom  in  the  law,  that  remedial  statutes  should  be  con- 
strued liberally  and  penal  statutes  strictly.  But  the  rule  prescribing  the  line 
between  remedial  and  penal  statutes  was  not  well  defined ;  an'd  the  statutes 
against  frauds  were  often  both  held  to  be  remedial  and  penal ;  as  where  the 
statute  acted  on  the  offender  it  was  taken  strictly,  but  where  it  acted  upon  the 
offence,  by  setting  aside  the  fraudulent  transaction,  it  was  to  be  expounded  lib- 
erally. [1  bl.  Com.  88.]  Admitting,  then,  as  the  fact  was,  that  the  original 
statutes  [against  usury]  were  clearly  penal,  the  present  law,  while  it  is  penal  to 
some  extent  in  its  consequences,  is  in  fact  so  modified  that  it  may  be  said  to  be 
adopted  into  the  family  of  remedial  statutes,  and,  though  a  brother  of  the  half 
blood,  is  nevertheless  entitled  to  its  share  of  the  inheritance,  or,  in  other  words, 
has  the  like  privilege  of  a  liberal  constiuction  with  those  statutes  which  are 
wholly  remedial.* 

Of  Statutes  Creating  Monopolies,  Granting  Franchises,  and' 
Charters  of  Incorporation.(a) — We  have  seen  f  that  the  civil  law 

*  Gray  v.  Bennett,  3  Met.  622,  527,  629,  \  Ante,  p.  245,  Domat's  Rules,  §  17. 

per  Hubbard,  J. 

(a)  Grants  of  corporate  powers  to  private  corporations  are  to  be  construed  strictly 
as  against  the  grantee.  Dugan  v.  Bridge  Co  27  Penn.  St.  303  ;  Cleveland,  &c.  R. 
R.  v.  Erie,  27  Penn.  St.  380 ;  Johnson  v.  Philadelphia,  60  Penn.  St.  445 ;  Hartford 
Bridge  Co.  v.  Union  Ferry  Co.  29  Conn.  210 ;  Bridge  Co.  v.  Hoboken  &c.  Co.  2 
Beasley,  81,  92,  94;  s.  c.  1  Wall.  116;  Currier  v.  Marietta.  &c.  R.  R.  11  Ohio,  N.  S. 
228.  In  this  case  it  was  held  that  the  corporation  had  no  power  to  make  a  tempo- 
rary location  on  one  side  of  a  town  while  building  its  permanent  track  on  the  other 
side.  Where  no  u  bridge,"  was  to  be  built  wi  hin  a  mile  of  a  toll  bridge  provided 
for  in  a  charter,  held  that  a  rai'road  bridge  might  be  built.  Lake  v.  Virginia,  &c, 
R.  R.  7  ISTev.  294 ;  and  see  Bridge  Co.  v.  Hoboken,  &c.  Co.  ubi  supra,  to  the  same 
effect.  • 

Where  it  is  doubtful  which  is  the  true  cons' ruction  of  a  charter,  that  is  to  be  pre- 
ferred which  is  in  accordance  with  subsequent  statutes.  Mays\ille  Tump.  Co.  y. 
How,  14  B.  Mon.  426.  A  legislative  grant  is  to  be  construed,  if  possible,  so  as  to 
effect  the  intent,  but  if  doubtful  the  leaning  must  be  against  the  grantee.  Rice  v. 
Railroad  Co.  1  Black,  358  A  grant  by  a  3tate  Legislature  of  lands  thereafter  to  be 
granted  to  the  State  by  the  United  States  passes  nothing  by  grant  or  by  estoppel. 
Ibid.  For  a  case  where  a  ch.irter  was  construed  by  a  divided  court  fa-orably  to  the 
corporation,  in  such  a  manner  as  to  sustain  a  grievous  monopoly,  and  to  invalidate  a 
subsequent  act  of  tha  State  Legislature,  'and  to  reverse  the  judgment  of  the  State 
courts,  although  the  language  was  susceptible  of  a  different  construction  which  had 
been  put  upon  it  by  the  court  below,  and  was  put  upon  it  by  the  dissenting  judges, 


292  STATUTES  CREATING  MONOPOLIES 

inclined  to  consider  grants  made  by  the  sovereign  with  a  favor- 
able eye,  and  to  give  them  an  enlarged  and  liberal  interpreta- 
tion. The  common  law,  however,  in  obedience  to  its  instinctive 
sympathy  with  equal  rights  and  its  jealousy  of  prerogative,  has 
always  adopted  a  widely  different  and  much  sounder  rule.  The 
uniform  language  of  the  English  and  American  law  is  that  all 
grants  of  privilege  are  to  be  liberally  construed  in  favor  of  the 
public,  and  as  against  the  grantees  of  the  monopoly,  franchise, 
or  charter  to  be  strictly  interp  eted.  Whatever  is  not  une- 
quivocally granted  in  such  acts,  is  taken  to  have  been  withheld ; 
all  acts  of  incorporation,  and  acts  extending  the  privileges  of 
incorporated  bodies,  are  to  be  taken  most  strongly  against  the 
companies.* 

*  Lees  v.  The  Manchester  &  Ashton  Canal  'In  regard  to  public  grants  of  franchises, 

Company,  11  East,  fi52;  Soles  v.  Pickering,  the  rules  of  construction  are  said  by  the  Su- 

4  Bingham,  452  ;  Dock  Company  at  Kingston-  preme  Court  to  be  these:    Fir*t,  that  where 

upon-Hull  v.  Browne,  2  Barn.  &  Adol.  43  ;  The  the  grant  is  designed  by  the  sovereign  power 

Providence    I'auk  v.   Billings   &  Pittman.   4  to  be  a  general  benefit  and  accommodation  to 

Peters,  514;  Charles  River  Bridge  v.  Warren  the  public,  it'  the  meaning  of  the  words  be 

Bridxe,  11   Peters,  420;  Parker  v.    Sunbury  doubtful,  they  shall    betaken  most   strongly 

And  Erie  R.  R.  Co.  19  Penn.  State  R.  211,  against  the  grantee,  and  for  the  government ; 

and  where  the  construction  actuary  given  by  the  majority  required  a  physical  impos- 
sibility, see  The  Binghamton  Bridge  Case,  3  Wall.  51. 

No  public  rights  can  be  taken  away  by  inferen  e  or  construction ;  there  must  be 
express  words;  thus  when  the  Legislature  have  granted  the  right  to  lay  pipes  in  pub- 
lic streets,  it  was  held  that  the  city  could  order  them  to  be  lowered  to  suit  a  new 
grade.  Jersey  City  v.  City  of  Hudson,  2  Beasley,  420.  For  the  construction  of  an 
early  land  grant  in  Mass.,  see  Commonwealth  v.  Roxbury,  9  Gray,  451. 

Where  a  turnpike  charter  prohibited  the  erection  of  a  toll-gate  within  the  town  of 
T.,  quaere  whether  it  meant  the  then  limits  or  the  limits  as  they  might  be  extended; 
Detroit  v.  Detroit,  &c.  12  Mich  333;  but  where  an  amendment  to  such  charter  gave 
the  right  to  extend  the  turnpike  to  a  certain  street  within  the  city  limits,  pro- 
vided no  tollgate  be  placed  within  the  city  limits,  that  meant  the  limits  as  then  exist- 
ing. Ibid.  A  person  who  is  authorized  to  build  a  macadamized  road,  and  to  charge 
tolls,  obtains  no  right  to  collect  the  tolls  until  he  has  complied  with  the  terms  of  the 
statute  and  completed  the  road.  State  v.  Curry,  1  Nev.  251.  A  grant  of  the  right 
to  build  a  bridge  does  not  confer  the  right  to  obstruct  navigation  without  an  express 
provision  to  that  effect.  Selman  v.  Wolf,  27  Tex  68. 

A  grant  of  power  to  a  municipal  corporation,  it  has  been  said,  must  be  strictly 
construed,  and  if  there  is  a  fair  and  reasonable  doubt,  the  construction  is  to  be  against 
the  power.  Paine  v.  Spratley,  5  Kans.  525  ;  but  on  the  othsr  hand  it  seems  by  the 
highest  English  authority  that  a  grant  of  the  power  of  eminent  domain,  to  a  munici- 
pality, will  be  more  liberally  construed  than  a  grant  to  a  railroad  or  other  quas  pub- 
lic corporation ;  Gallaway  v.  London,  Law  R.  1  H.  L.  34.  A  status  authorizing  a 
transfer  of  a  franchise  without  any  increase  of  it,  is  not,  as  it  seems,  to  be  strictly 
construed ;  Black  v.  Delaware,  &c.  Canal,  22  N.  J.  130. 


STATUTES  CREATING   MONOPOLIES.  293 

It  is  interesting  to  observe  the  vigilance  with,  which  this 

o  o 

principle  has  been  applied.  Where  a  company  was  incor- 
porated by  statute  for  the  purpose  of  inland  navigation,  and 
they  accquired  lands  forming  a  reservoir,  which  lands  were  to 
vest  in  the  company  in  fee,  "to  and  for  the  use  of  the  said 
navigation  company,  and  to  or  for  no  other  use  or  purpose 
whatever,"  it  was  held  by  the  Court  of  Queen's  Bench,  that 
a  railway  company  which  succeeded  to  the  rights  of  the  naviga- 
tion company,  could  not  let  out  boats  for  hire  on  the  reservoir.* 
So  again  it  has  been  said,  that  statutes  interfering  with  the 
general  rights  of  the  subject,  establishing  monopolies  and  im- 
posing penalties,  are  to  be  strictly  construed.  Thus,  where  an 
act  of  Parliament  imposed  a  penalty  on  all  but  freemen  of  the 
Waterman's  Company,  for  navigating  any  wherry,  lighter,  or 
other  craft,  on  the  Thames,  it  was  held  that  a  steam-tug  was 
not  within  the  description  and  prohibition  of  the  act.f  Where 
a  company  was  authorized  to  take  lands  for  a  railway,  and  a 
jury  was  to  be  summoned  to  fix  the  value  of  the  lands,  and  to 
award  separately  for  injury  sustained,  and  a  jury  so  summoned, 
gave  a  verdict  for  an  entire  sum, — it  was  held  that  the  company 
could  not  treat  the  verdict  as  a  nullity,  the  provision  being  for 
the  benefit  of  the  claimant.  J 

and  therefore  the  grant  is  not  to  be  extended  Co.  v.  Hustler,  1  B.  &  Cres.  424 ;  Kingston*- 

by  implication  in  favor  of  the  grantee  beyond  upon-Hull   Dock  Co.  v.  La  Marche,  8  B.  <fe 

the  natural  or  obvious  meaning  of  the  words  Cres.    51;  Priestly   v.   Fould,  2   Scjtt  N.  R, 

employed.    Second,  if  the  grant  admits  of  two  205;    Portsmouth    Floating    Bridge    Co.    v. 

interpretations,  one  of  which  fs  more  extended  Nance,    6    Scott    N.    R.    823;    Stourbridge 

and  the  other  more  restricted,  so  that  a  choice  Canal  Co.  v.  Wheeley,  2  Barn.  &  Ad.   792, — 

is  fairly   open,   and  either  may  be  adopted  are  ale  ises  to  the  effect,  that  in  grants  of 

without  any  violation  of  the  appirent  object  franchises  or  privil"ges,  any  ambiguity  must 

of  the  grant,  if  in  such  a  ca«e,  one   interpre-  op  rate  against  the  grantees,  and  in  favor  of 

pretation  would  render  the  grant  inoperative,  the   public.    See,   to   s.   P.,    Barrett  v.    The 

and  the  other  would  give  it  force  and  effect,  the  Stockton  and  Darlington  R.  Co.  2  Scott  N.  R. 

latter,  if  within  a  reasonable  construction  of  337;    Stockton    and   Darlington    R.    Co.    v. 

the    terms    employed,   should    be   adopted.  Barrett,  s.  c.  in  Exchequer  Chamber,  3  Scott 

Charles  River  Bridge  v.  Warren  Bridge,  11  N.    R.    803.      Verha  char tarum  for tius  accip- 

Peters,  544;    Mil.s   v.  St.    Clair   County,    8  iuntur  contra  prof erentem. 

Howard,  581.  See   also   Blakemore   v.  The  Glamorgan- 

*  Rostock    v.    The   North    Staffordshire  shire  Canal  Navigation,  1  Mylne  &  K.  154,  as 

Railway,  4  Ellis  &  Black.  799  ;  a  case  certified  to  the  construction  of  acts  creating  companies 

on   a  question  sent  dowu  from  the  Court  of  to  construct  public  works. 

Chancery.     Campbell,   C.    J.,   Coleridge   and  In    regard  to   the  strictness  with  which, 

"Wightman,    JJ.,    united   iu    the    certificate;  in  England,  the  railway  companies  are  held 

Earle,  J..  gave  a  contrary  opinion.  to   a   performance  of  tho;r   chartered  obliga- 

f  Reed  v.  Ingham,  3  Ellis  &  Blackburn  tions,   see   the   rai  way   cases  generally,  and 

Q.  B.  p.  889.  Commonwealth  v.  Piltsburg  and  Coimelsville 

\  in  re,  London  and  Greenwich  Railway  R.  R.  Co.  24  Penn.  S.  R.  159,  where  they  are 

Co.   4  Nev.  &  Mann.  458 ;  Gildart  v.  Glad-  reviewed  per  Lowrie,  J. 
stone,  11  East,  685;  The  Leeds  &  Liverpool 


294  STATUTES   CREATING  CORPORATIONS. 

In  this  country,  the  same  doctrine  has  been  steadily  adhered 
to.  So,  the  Supreme  Court  of  the  United  States  says,  "  A 
corporation  is  strictly  limited  to  the  exercise  of  those  powers 
which  are  specially  conferred  upon  it.  The  exercise  of  the 
corporate  franchise,  being  restrictive  of  individual  rights,  cannot 
be  extended  beyond  the  letter  and  spirit  of  the  act  of  incor- 
poration." *  So  again,  in  the  same  court,  it  is  said  that  in 
regard  to  charters  of  incorporation,  it  has  always  been  held 
that  a  corporation  takes  nothing  except  what  is  plainly  ex- 
pressed and  unequivocally  granted.  The  charter  is  held  to  be 
a  contract  between  the  State  and  the  corporation,  and  no  clause 
of  power  or  privilege  can  be  inserted  by  implication.  This 
lias  been  repeatedly  declared  in  cases  where  the  corporation 
has  contended  for  implied  immunities,  such  as  an  exemption  from 
taxation.  This  privilege  can  only  be  granted  by  express  words,  f 

The  language  in  Connecticut  is  the  same  :  "  The  rules  of 
construction  which  apply  to  general  legislation,  in  regard  to 
those  subjects  in  which  the  public  at  large  is  interested,  are 
essentially  different  from  those  which  apply  to  private  grants  to 
individuals,  of  powers  or  privileges  designed  to  be  exercised 
with  special  reference  to  their  own  advantage,  although  involv- 
ing in  their  exercise  incidental  benefits  to  the  community  gen- 
erally. The  former  are  to  be  expounded  largely  and  benefi- 
cially, for  the  purposes  for  which  they  were  enacted.  The  lat- 
ter liberally  in  favor  of  the  public,  and  strictly  as  against  the 
grantees."  J 

So,  too,  in  Pennsylvania  it  is  said,  "  Corporate  powers  can 
never  be  created  by  implication,  nor  extended  by  construction. 
No  privilege  is  granted  unless  it  be  expressed  in  plain  and  un- 
equivocal words,  testifying  the  intention  of  the  Legislature  in  a 
manner  too  plain  to  be  misunderstood.  *  *  In  the  construction 
of  a  charter,  to  be  in  doubt  is  to  be  resolved,  and  every  resolu- 
tion which  springs  from  doubt  is  against  the  corporation.!" 

*  Beaty  v.  Lessee  of  Knowler,  4   Peters,  mercial  Bank  of  Cincinnati,  7  Ohio  R.    125  > 

152,  168.  Union  Bank  v.  State  .of  Tennessee,  9  Yerger, 

f  Charles  River  Bridge  v.  Warren  Bridge,  490, 

11    Peters,  420;  Bank  of  Easton  v.  Co  nmon-  \  Bradley  v.  N.  Y.  &  N.  Haven  R.  R.   Co. 

wealth,  10  Penn.  State  R.  422  ;  B  ink  of  Penn-  21  Conn.  294,  306. 

sylvaniav.  Commonwealth,  7  Penn.  State  R.  ||  Pennsylvania  R.  R.  Co.  v.  Canal  Com'rs, 

144.     But  see,  contra,  State  of  Ohio  v.  Com-  21  Penn.  9. 


STATUTES  CREATING  CORPORATIONS.  295 

So,  in  the  same  State,  in  regard  to  a  statute  authorizing  a 

/  /  o  *— ' 

railroad  company  to  take  land  upon  a  report  of  viewers,  which, 
among  other  things,  should  state  the  quality  and  value  of  the 
land  taken, — it  was  held  that  a  report  of  the  viewers  omitting 
to  state  the  quality  and  value  of  the  land  is  fatally  defective ; 
and  the  court  said,  "  It  is  most  manifest  equity,  that  he  who 
claims  a  special  privilege  must  submit  to  a  strict  construction  of 
it.  He  who  claims  the  right  to  be  tried  before  a  special  tribu- 
nal and  in  a  special  form,  both  of  which  are  out  of  the  general 
course  of  the  law,  must  expect  that  the  special  mode  of  trial 
shall  be  strictly  pursued  as  to  the  forms  prescribed,  and  not  be 
allowed  to  innovate  upon  the  general  principles  of  law  further 
than  is  indicated  by  the  law  that  prescribes  it."* 

In  New  York  it  has  been  said  a  statute  conferring  privileges 
upon  individuals  should  not  be  so  construed  as  to  work  a  pub- 
lic mischief,  unless  required  by  explicit  and  unequivocal  lan- 
guage. So  where  an  act  authorized  a  proprietor  of  lands  lying 
on  the  East  River,  which  is  an  arm  of  the  sea,  to  fill  up  and 
construct  wharves  and  bulkheads  in  front  of  his  lands,  and 
there  was  at  the  time  a  public  highway  through  the  land  to  the 
river,  it  was  held  that  the  proprietor  could  not  by  filling  up, 
obstruct  the  public  passage  from  the  land  to  the  water,  and  that 
the  street,  by  operation  of  law,  extended  from  the  former  ter- 
minus over  the  new-made  land  to  the  water."f 

So  in  Pensylvania,  a  grant  of  a  right  of  way  of  fifty  feet 
wide,  for  a  railway,  through  a  small  slip  of  land  in  a  densely 
populated  city,  will  only  convey  so  much  ground  as  is  neces- 
sary for  the  line  of  the  road,  and  will  not  carry  by  implication 
the  right  to  erect  within  such  line  depots,  car-houses,  or  other 
structures  for  the  business  of  the  road  ;  and  such  a  grant  does 
not  confer  on  the  railroad  company  the  right  to  permit  their 
cars  or  locomotives  to  remain  on  the  track  of  the  road  within 
the  fifty  feet  for  a  longer  time  than  is  necessary  to  receive  and 
and  discharge  freight  and  passengers.!}; 

"  Private  statutes,"  says  Parsons,  C.  J.,  of  the  Supreme  Court 
of  Massachusetts,  speaking  of  an  act  granting  a  fishing  right  to 

*  Zack  v    Penn.    Railroad  Co,     25  Penn.  \  Mayor,  <fcc.  of  Allegheny  v.   Ohio  and 

State  R.  394.  Penn.  R.  R.  Co.  26  Penn.  355. 

f  The  People  v.  Lambier,  5  Denio,  1. 


296  STATUTES   CONFERRING    EXEMPTIONS. 

a  town,  "  made  for  the  accomodation  of  particular  citizens  or 
corporations,  ought  not  to  be  construed  to  affect  rights  or  privi- 
leges of  others,  unless  such  construction  results  from  express 
words  or  necessary  implication."* 

In  New  York,  in  regard  to  the  ferry  franchise  conferred  on 
the  municipal  government  of  the  city  of  New  York  by  its  charter, 
it  is  held  that  it  is  not  a  mere  authority  to  administer  the  ferry 
franchise  as  a  political  trust,  liable  to  be  resumed  by  the  legis- 
lative power ;  but  that  it  is  a  vested  right,  and  a  valuable  in- 
terest, which  cannot  be  taken  away  by  the  Legislature  ;  while 
it  was  at  the  same  time  admitted,  that  charters  or  grants  con- 
veying to  municipal  bodies  rights  of  a  private  nature,  should  be 
strictly  construed,  and  that  in  case  of  ambiguous  phraseology? 
the  presumption  should  be  in  favor  of  construing  the  same  as  a 
public  grant.f 

Statutes  Conferring  Particular  Exemptions  from  General 
Burthens,  or  against  Common  and  General  Riglit.(a) — The  stat- 

*  Coolidge  v.  Williams,  4  Mass.  140.  (page  243)  his  remarks  on  the  case  of  the 

Case  on  an  alewife-fishing  statute.  town  of  East  Hartford  v.  Hartford  Bridge  Co. 

•j-  Benson  v.  The  Mayor,  &c.  of  New  York  See  also  as  to  ferry  franchises,  Mills  v.  St. 

et  al.  10  Barb.  224,  per  Barculo,  J. ;  and  see  Clair  County,  8  Howard's  (U.  S.)  Rep.  569. 

(a)  Statutes  derogating  from  common  right  are  to  be  strictly  construed.  As  illus- 
trations :  giving  a  preference  in  payments  out  of  county  revenues,  People  v.  Williams, 
8  Cal.  97  ;  requiring  gratuitous  services  from  any  class  of  persons,  Webb  v.  Baird,  6 
Ind.  13;  subjecting  property  to  forfeiture  for  the  offence  of  another  person  than  the 
owner,  such  forfeiture  cannot  arise  from  implication,  Ohio  v.  Stunt,  10  Ohio,  N.  S. 
582;  condemning  private  property  for  public  use,  Gilmer  v.  Lime  Point,  19  Cal.  47; 
Curranv.  Shattuck,  24  Cal  427;  Adams  v.  Saratoga,  &c.  R.  R.  10  N.  Y.  328;  but 
not  so  literally  as  to  defeat  the  object,  1ST.  Y.  &c.  R  R.  v.  Kip,  46  N.  Y.  546 ;  provid- 
ing that  a  passenger  riding  on  the  platform  of  a  car  when  there  is  room  inside  shall 
have  no  claim  for  compensation  in  case  of  accident,  Willis  v.  Long  Island  R.  R.  32 
Barb.  398;  impressing  property  for  public  use,  e.  g.,  in  case  of  pestilence,  Pinkham 
v.  Dorothy,  55  Me.  135  ;  authorizing  municipal  aid  to  railroads,  Hoag  v.  Peck,  62 
Barb.  545;  restraining  trade  or  the  alienation  of  property,  Richardson  v.  Emsvviler,  14 
La.  Ann.  668 ;  excluding  testimony,  Pelham  v.  Messenger,  16  La.  Ann.  99. 

The  same  is  true  of  statutes  conferring  special  privileges,  as  banking  laws, 
State  v.  Chase,  5  Ohio,  N.  S.  528.  Thus  when  the  act  authorized  the  organization  of  a 
certain  number  of  banks,  and  the  authorized  number  were  organized,  and  some  of 
them  afterwards  ceased  to  do  business,  it  was  held,  that  no  new  ones  could  be  organ- 
ized to  take  their  places.  Ibid.  A  statute  prescribing  how  a  man  shall  build  on  his 
own  land,  with  pains  and  penalties,  should  be  scrutinized  with  great  care.  Stiel  v. 
Mayor  of  Sunderland,  6  H.  &  N.  796. 

Statutes  imposing  disabiliti2S  for  the  protection  of  the  party,  e.  g.,  in  the  case  of 
the  Indians,  are  not  to  be  strictly  construed.  Doe  v.  Avaline,  8  Ind.  6. 


STATUTES    AGAINST   COMMON   RIGHT.  297 

utes  which  fall  in  this  class  are,  like  those  which  we  have  just  con- 
sidered, regarded  with  a  jealous  eye  and  strictly  construed.  So 
in  Indiana,  it  has  been  said,  the  sound  principle  is  that  all  per- 
sons should  bear  the  burthens  of  taxation  alike.  Consequently, 
any  statute  which  exempts  persons  or  property  from  taxation, 
is  to  be  construed  strictly.  So,  a  statute  exempting  the  lands 
whereon  any  building  erected  for  religious  worship  is  situate, 
not  exceeding  ten  acres,  does  not  include  any  part  of  the  ten 
acres  which  is  actually  used  for  secular  purposes  for  gain.* 

So  in  the  same  State  it  has  been  said,  in  reference  to  the 
compulsory  assignment  of  counsel,  that  a  statute  requiring  the 
services  of  the  citizen  gratuitously  is  against  common  right,  and 
therefore  to  be  strictly  construed ;  and  consequently  a  statute 
requiring  gratuitous  services  in  civil  cases  would  not  be  ex- 
tended to  criminal  cases.f 

In  Maryland,  the  bill  of  rights  gives  the  Legislature  power 
to  compel  a  party  to  give  evidence  against  himself;  and  in  re- 
gard to  this,  the  Court  of  Appeals  in  that  State  have  said,  "  Al- 
though it  is  competent  to  the  Legislature  to  alter  the  rule  of 
evidence  so  as  to  compel  a  party  to  give  testimony  against  him- 
self, it  is  nevertheless  a  power  of  such  transcendent  and  over- 
whelming operation  that  a  just  regard  for  the  liberties  of  the 
citizen  should  at  all  times  induce  the  most  jealous  and  cautious 
exercise  of  it  by  the  Legislature.  And  especially  should  courts 
of  justice  anxiously  and  narrowly  watch  it,  and  never  under 
any  pretense  whatever  extend  it  beyond  the  limits  to  which  the 

*  Orr  v.  Baker,  4  Indiana,  86.  f  "Webb  v.  Baird,  6  Indiana,  13. 

Exemptions  from  Taxation. — See  Bank  of  the  Republic  v.  Hamilton,  21  111.  53  ^ 
B.  C.  Cemetery  v.  City  of  B.  46  K  Y.  506;  Exemption  from  "all  public  taxes,  rates, 
and  assessments,"  does  not  include  exemption  from  assessment  for  local  improvement. 
Ibid.  Canal  Co.  v.  Dauphin  County,  3  Brewst.  124.  As  to  exemption  of  U.  S.  securi- 
ties, see  People  v.  Hoffman,  37  N.  Y.  9,  which  was  reversed  by  the  Supreme  Court  of 
the  U.  S.,  see  notes  to  "  taxation"  under  the  head  "  State  and  National." 

A  person  claiming  exemption,  whose  case  falls  within  the  descriptive  words  of  the 
law  laying  the  tax,  must  clearly  establish  the  exemption,  but  other  statutes  may  be 
looked  to  for  the  intent,  as  in  other  cases.  Hannibal  &c.  R.  R.  v.  Shacklett,  30  Mo. 
550.  But  where  a  statute  provided  that  farming  lands  taken  into  a  city  by  an  ex- 
tension of  its  limits  should  be  taxed  at  a  less  rate,  it  was  held,  that  this  act  being  for 
an  equitable  distribution  of  the  burden,  and  not  for  mere  exemption,  was  not  to  be 
strictly  construed  against  the  claimant.  Gillette  v.  Hartford,  bl  Conn.  351. 


298  STATUTES    AGAINST   COMMON   RIGHT. 

strictest  interpretation  of  the  legislative  act  confines  it  in  the 
particular  case.* 

So,  in  construing  a  Massachusetts  statute  avoiding  "  every 
gift,  bargain,  sale,  or  transfer,  of  any  real  or  personal  estate"  by 
a  spendthrift  after  appointment  of  a  guardian,  it  was  said, 
"  Every  man  of  full  age  and  sound  mind  is  at  liberty  to  make 
contracts;  and  if  made  upon  good  consideration  and  without 
fraud  he  must  be  bound  by  them,  unless  by  statute  provision 
he  is  disabled ;  and  disabling  statutes  of  that  nature  should  be 
construed  strictly  ;  for,  though  founded  in  policy  and  a  just  re- 
gard to  the  public  welfare,  they  are  in  derogation  of  private 
rights ; "  and  the  statute  was  held  not  to  avoid  a  promissory 
note  of  the  spendthrift,  although  it  might  indirectly  affect  his 
real  or  personal  estate,  f 

In  the  same  State,  a  statute  providing  that  all  real  and  per- 
sonal estate  which  shall  at  any  time  be  exposed  to  sale  at  pub- 
lic auction  or  vendue  shall  be  subject  to  duty,  was  held  not  to 
apply  to  a  lease  of  real  estate  by  auction ;  and  it  was  said  that 
statutes  which  imposed  restrictions  upon  trade  or  common  oc- 
cupations or  which  levy  an  excise  or  tax  upon  them,  must  be 
construed  strictly. "J 

It  has  been  attempted  to  bring  statutes  in  derogation  of  the 
common  rights  of  creditors,  within  this  rule.  So  it  has  been 
said  in  England,  that  a  statute  for  the  discharge  of  insolvent 
debtors  ought  to  be  construed  strictly,  quoad  the  cessio  lonorum, 
and  the  rights  of  the  creditors.  "Let  a  statute  be  ever  so 
charitable,"  said  Holt,  C.  J.,  "  if  it  gives  away  the  property  of 
the  subject,  it  ought  to  be  construed  strictly."!  And  in  this 
country  it  has  been  said,  that  statutes  in  derogation  of  the  com- 
mon rights  of  creditors  to  secure  their  debts  out  of  the  property 
of  their  debtors,  as  statutes  exempting  property  from  execution, 
ought  to  have  a  strict  construction.  So  in  Massachusetts,  a 
statute  exempting  the  tools  of  a  debtor  from  execution  does  not 
apply  to  a  printing-press,  and  types. ^f  But  I  doubt  if  any  such 
general  rule  can  be  asserted  to  exist ;  on  any  construction  the 

*  Broadbent  v.   The  State,  7  Maryland,  J   12  Mod.  513. 

416.  «jf  Buckingham  v.  Billings,  13  Mass.  80 ; 

t  Smitt  v.  Spooner,  3  Pick.  229,  230.  Danforth  v.  "Woodward,  10  Pickering,  423. 
\    Sewall  v.  Jones,  9  Pick.  414. 


SUMMARY   JUDICIAL   PROCEEDINGS.  299 

word  "  tools  "  can  be  hardly  said  to  include  printing-presses  and 
types ;  and  in  a  subsequent  case  this  law  has  been  called  a 
"  humane  and  beneficial  statute,  not  to  be  too  narrowly  con- 
strued."* We  have  here  again  an  illustration  of  the  dangers  of 
construction  resting  on  motives  of  policy.  Policy  is  a  shifting 
and  varying  element ;  and  it  is  evident  that  judicial  notions  of 
the  wisdom  or  expediency  of  an  act  of  the  Legislature,  can  with 
no  propriety  be  permitted  to  override  the  authentic  declarations 
of  the  will  of  the  governing  power,  (a) 

Statutes  Authorizing  Summary  Judicial  Proceedings. — It 
is  a  well  settled  and  wholesome  rule,  that  statutes  authorizing 
summary  proceedings,  and  by  which  extraordinary  powers  are 
given  to  courts  or  officers  of  justice,  are  to  be  strictly  construed; 
and  that  the  powers  conferred  must  be  strictly  pursued,  so  far 
as  regards  all  the  steps  and  proceedings  necessary  to  give  juris- 
diction, or  the  whole  proceedings  will  be  void.  So,  where  a 
statute  authorizing  justices  to  stop  up  an  old  foot-way  and  sub- 
stitute a  new  one,  required  "that  the  forms  of  proceedings  set 
forth  in  the  schedule  annexed  shall  be  used  on  all  occasions, 
with  such  additions  or  variations  only  as  may  be  necessary  to 
adapt  them  to  the  particular  exigencies  of  the  case,"  a  strict 
observance  of  these  forms  was  held  essential ;  and  Lord  Ken- 
yon,  C.  J.,  said,  "  I  cannot  say  that  these  words  are  merely 
directory.  Power  is  given  to  the  magistrate  to  take  away,  on 
certain  conditions,  a  right  which  the  public  before  enjoyed ;  and 
this  is  to  be  done  in  a  certain  prescribed  form,  with  such  addi- 
tions and  variations  only  as  the  locality  of  the  description  may 
require.  Now,  here  there  is  a  material  variance  in  the  order 
from  the  form  prescribed,  for  it  does  not  set  forth  the  length 
and  breadth  of  the  new  path  set  out  in  lieu  of  the  old  one." 
The  court  therefore  held  the  order  void,  and  the  public  still 
entitled  to  the  use  of  the  old  path  through  the  plaintiffs  land.f 

So,  where  a  statute  required  that  on  petition  for  the  sale  of 

*  Howard  v.  "Williams,  2  Pick.  80,  83.  f  Davison  v.  Gill,  1  East,  64. 

(a)  A  power  vested  by  a  State  Constitution  in  the  courts  to  relieve  individuals 
under  certain  circumstances  from  a  general  disability  imposed  upon  a  class  to  which 
they  belong,  must  be  strictly  construed.  State  v.  Woodson,  41  Mo.  227. 


300  SUMMARY   JUDICIAL  PROCEEDINGS. 

lands,  a  guardian  should  be  appointed  for  infants,  and  it  was 
not  done,  it  was  held  that  the  sale  was  void  as  to  such  infants.* 
So,  when  a  statute  confers  a  new  power  on  a  justice  of  the 
peace,  he  must  proceed  strictly  in  the  mode  prescribed  by  stat- 
ute, f  In  New  York,  where  before  an  attachment  can  be  issued 
by  a  justice  of  the  peace,  against  a  non-resident  of  the  county,  a 
bond  must  be  given  by  the  applicant,  the  giving  this  bond  is  a 
condition  precedent  to  the  power  which  the  statute  confers ; 
and  if  the  justice  undertakes  to  execute  the  power  by  issuing 
the  attachment,  without  exacting  a  prior  performance  of  the 
condition,  his  acts  are  utterly  void,  and  the  process  affords  him 
no  protection  for  what  is  done  under  it.  J 

So,  a  justice  authorized  t<»  take  jurisdiction  of  certain  offences 
on  complaint  under  oath  or  view,  cannot  convict  on  confession.  | 
So  again,  where  a  statute  requires  a  justice's  summons  to  be 
served  by  reading  it  to  the  defendant  and  delivering  him  a 
copy,  a  service  by  delivering  the  summons  personally  to  the 
defendant  is  bad,  and  gives  the  magistrate  no  jurisdiction.  *]f 
So  in  New  York,  the  proceedings  to  obtain  judgment,  upon  an 
award  of  arbitrators  are  summary,  and  must  be  complied  with. 
And  when  it  was  provided  that  where  there  had  been  a  sub- 
mission to  arbitrators  under  the  statute,  judgment  might  be 
rendered  on  the  award,  upon  such  submission  being  proved  by 
the  affidavit  of  a  subscribing  witness  thereto,  the  affidavit  of  a 
witness  who  subsequently  attested  it  was  held  not  sufficient.** 

In  the  same  State  it  has  been  decided,  that  a  sale  of  an 
intestate's  real  estate  to  pay  debts,  by  virtue  of  a  surrogate's 
order  under  a  statute  declaring  that  in  such  cases  a  guardian 
shall  be  appointed  for  infant  heirs,  is  void  unless  such  guardian 
be  appointed.  The  statute  is  imperative,  and  leaves  nothing  to 
the  discretion  of  the  surrogate.  Public  policy  demands  that 
the  safeguard  which  the  Legislature  has  provided  for  the  protec- 
tion of  the  helpless,  against  negligence,  oppression,  and  fraud, 
should  be  maintained,  ff  On  the  same  ground,  the  Supreme 

*  Bloom  v.  Burdick,  1  Hill,  130;  Rea  v.  |  Bargis  v.  The  State,  4  Indiana,  126. 

M'Eachron,  13  Wend.  465;  Babbitt  v.  Doe,  4  J  Campau  v.  Fairbanks,  1  Michigan,  151. 

Indiana,  355;  Atkins  v.   Rinnan,  20  Wend.  **  Bollenback  v.  Fleming,  6  Hill!  303. 

241.  If  Per  Gardiner.  J..  in  ,-chneider  v.  Mc- 

Bigelow  v.  Stearns,  19  J.  R.  39.  Farland.  2  Corns.  459.     See  also  on  this  sub- 

\  Davis  v.  Marshall,  14  Barb.  96.  ject  MTherson  v.  Cunliff,  1 1  Serg.  &  Rawle, 


SUMMARY  JUDICIAL  PROCEEDINGS.  301 

Court  of  the  United  States  has  decided  that  executors  and  ad- 
ministrators, in  making  sale  of  property,  must  comply  strictly 
with  the  requisites  of  all  statutory  provisions  on  the  subject ; 
and  that  unless  every  essential  direction  of  the  law  is  complied 
with,  those  whose  interests  are  affected  are  not  affected  by  the 
sale,  unless,  from  a  long  acquiescence,  a  foundation  is  laid  for  a 
fair  and  reasonable  presumption  that  the  requisites  of  the  law 
have  been  complied  with.  So,  where  an  Alabama  statute  de- 
clared that  it  should  not  be  lawful  for  an  executor  to  dispose  of 
the  estate  of  the  decedent  at  private  sale,  such  a  sale  was  held 
absolutely  void.  * 

So,  too,  in  Michigan  it  has  been  held,  that  when  a  court 
exercises  a  special  jurisdiction  under  a  statute,  the  mode  of  pro- 
ceeding must  be  strictly  pursued;  thus,  where  a  statute  re- 
quires that  before  a  writ  of  attachment  shall  issue,  an  affidavit 
of  indebtedness  shall  be  made  and  annexed  to  it,  it  was  held 
that  a  writ  issued  without  any  affidavit,  but  to  which  an  affi- 
davit made  ten  days  afterwards  was  annexed  before  actual 
service,  was  irregular  and  void,  f  So  as-ain  in  New  York,  in  a 

'  O  O  / 

proceeding  by  an  insolvent  debtor  for  a  discharge,,  where  the 
petition  set  forth  that  the  petitioners  had  given  a  bond  pursu- 
ant to  the  tenth  section  of  the  act  on  the  subject,  and  the  tenth 
section  made  mention  of  two  bonds,  only  one  of  which  gave  the 
officer  jurisdiction  ;  it  was  held  that  jurisdiction  was  not  ac- 
quired, and  the  proceedings  were  reversed  on  certiorari.  J 

On  the  other  hand,  it  has  been  frequently  decided  that 
where  a  court  once  obtains  jurisdiction,  its  proceedings  cannot 
be  collaterally  impeached,  although  they  appear  to  have  been 
irregular  and  contrary  to  law.  |  The  distinction  appears  to  be, 
and  it  is  one  which  distinguishes  this  class  of  cases  from  the 
administrative  proceedings  which  we  shall  consider  under  the 
next  branch  of  our  subject,  that  in  regard  to  summary  judicial 
proceedings,  it  is  indispensable  that  all  the  statutory  directions 
in  regard  to  the  steps  required  to  give  the  officer  jurisdiction, 

429,  and  Grignon's  Lessee  v.  Astor,  2  How-          \  The  People  ex  rel.  Cornier  v.  Reed,  5 

aru's  (U.  S.)  li.  319.  Denio,  554. 

*  Ventress  et  a/,  v.  Smith,  10  Peters,  161.  ||  Voorliees  v.  Bank  of  U.  S.  10  Peters, 

f  Buckley  v.  Lowry,  2  Mich.  419.  449;  Grig-non's  Lessee  v.  Astor,  2  Howard's 

(U.  S.)  R.  319. 


302  SUMMARY   ADMINISTRATIVE    PROCEEDINGS. 

whether  over  the  person  or  over  the  subject-matter,  as  the  case 
may  be,  must  be  strictly  observed,  otherwise  the  whole  pro- 
ceedings are  void,  cor  am  non  judice;  and  the  objection  may  be 
taken  wherever  they  are  set  up  and  relied  on ;  but  if  jurisdic- 
tion be  once  acquired,  then  any  subsequent  errors  or  irregulari- 
ties committed  by  the  officer  are  treated  like  other  judicial 
errors,  and  can  only  be  corrected  in  the  particular  manner,  on 
appeal  to  the  proper  tribunal.  In  regard  to  administrative  pro- 
ceedings, on  the  other  hand,  no  judicial  discretion  or  authority 
is  recognized:  they  are  treated  as  ministerial  throughout;  and 
any  departure  from  the  directions  of  the  statute  is  fatal,  whether 
the  objection  be  taken  directly,  or  indirectly  in  any  collateral 
matter.  In  regard  to  summary  judicial  proceedings,  the  line 
which  divides  the  steps  necessary  to  give  jurisdiction  from  those 
subsequent  is  often  very  difficult  to  define  with  precision,  and 
depends  on  the  nature  of  the  proceedings  and  the  language  of 
the  statute. 

Statutes  Authorizing  Summary  Administrative  Proceedings. 
Affecting  Rights  of  Property. — Where  summary  proceedings  are 
authorized  by  statute,  the  effect'  of  which  is  to  divest  or  affect 
rights  of  property,  the  rule  holds  good  that  they  are  to  be 
strictly  construed.  The  power  conferred  must  be  executed 
precisely  as  it  is  given,  and  any  departure  will  vitiate  the  whole 
proceeding.  It  is,  indeed,  a  general  rule  that  all  statutes  con- 
ferring special  ministerial  authority  by  which  any  man's  estate 
may  be  affected,  must  be  strictly  pursued.  So,  where  certain 
loan  commissioners  are  authorized  on  the  default  of  payment  of 
moneys  loaned  by  them,  to  sell  the  premises  mortgaged  to  se- 
cure the  <debt,  a  sale  by  one  only  is  void.*  So  again,  where  a 
statute  in  New  York  authorized  loan  commissioners  in  default 
of  payment  to  advertise  and  sell  on  a  certain  day  (the  first  Tues- 
day of  February),  and  if  not  sold  or  struck  off,  and  the  bid  not 
paid,  then,  to  enter  and  to  lease  till  the  third  Tuesday  of  Sep- 
tember following,  and  then  to  sell  again, — it  was  held  that  the 
lands  being  struck  off  on  the  first  day  and  the  bid  not  paid,  it 
was  not  competent  for  the  commissioners  to  resell  them  on  the 
same  day  to  another  person,  but  that  they  were  bound  to  wait 

*  Powell  v.  Tuttle,  3  Comst.  396;  Olmsted  v.  Elder,  1  Seld.  144. 


TAX  SALES.  303 

till  the  second  day  named  in  the  statute ;  and  where  the  sale 
was  directed  to  be  for  cash,  it  was  held  that  the  commissioners 
could  not  sell  on  credit.* 

In  this  country,  there  is  a  large  and  important  class  of  cases 
falling  under  this  branch  of  our  subject,  where  ministerial  offi- 
cers, either  the  direct  agents  of  the  State,  or  of  corporations 
clothed  with  certain  attributes  of  local  sovereignty  are  author- 
ized to  sell  the  property  of  private  individuals  for  non-payment 
of  taxes,  or  charges  imposed  on  them.  The  proceedings  contem- 
plated by  these  enactments  are  generally  directed  to  be  taken 
without  giving  the  party  alleged  to  be  in  default  any  oppor- 
tunity of  defence;  and  their  validity  has  been  denied,  on  the 
ground  of  their  being  in  conflict,  as  it  has  been  urged,  with  the 
constitutional  provision  which,  in  most  if  not  all  States,  guaran- 
tees to  every  citizen  the  protection  of  "  the  law  of  the  land." 
This  objection  has  been,  however,  overruled,  and  the  power  has 
been  sustained  on  grounds  of  immemorial  usage  and  state  neces- 
sity. But  while  asserting  the  power,  it  has,  in  all  cases,  been 
held  that  it  must  be  strictly  pursued,  and  that  its  exercise  will 
be  vigilantly  watched.f  So,  the  Supreme  Court  of  the  United 
States  has  said,  in  regard  to  the  sale  of  lands  for  taxes,  that 
every  prerequisite  to  the  exercise  of  the  power  should  precede 
it ;  that  the  party  who  sets  up  a  title  under  such  a  sale,  must 
furnish  the  evidence  necessary  to  support  it ;  and  that  the 
marshal's  deed  is  not  even  prima  facie  evidence  that  the  prere- 
quisites required  by  law  have  been  complied  with.  J  A  statute 
authority,  by  which  a  man  may  be  deprived  of  his  estate,  must 
be  strictly  pursued.  Thus,  where  by  the  law  of  Tennessee  it  is 
made  essential  to  the  validity  of  a  sale  of  land  for  taxes,  that 

*  Sherwood  v.  Reade,  7  Hill,  431  ;   over-  as  filling  up  an  advertisement  of  sale,  may  be 

ruling  the  decision   of  Mr.  Chancellor  Wai-  delegated;    or  when  one  overseer  of  the  poor 

worth  in  same  case,  8  Paige,  633.  in  the  name  and  behalf  of  two,  applies  for  proc- 

We  may  here  notice  some  general  rules  as  ess.     Downing  v.    Rugar,  21  Wend.  178  ;  but 

to  powers.    Asa  genernl  thing,  in  the  exercise  not  so  when  any  discretion  is  to  be  executed ; 

of  an  authority  whether  ministerial  or  judicial,  Powell  v.  Tuttle,  3  Coinst.  396. 
all  the  persons  to  whom  it  is  committed  must  -j-  State  v.  Allen,  2  McCord,  55  ;  Harris  v. 

confer  and  act  together.     Downing  v.  Rugar,  Wood,  6  Monroe,  643;    Willard  v.  Whether- 

21  Wend.  178.  bee,  4  N.  H.   R.  118.     See  other  cases  cited 

So  the  concurrence  of  four  justices  is  nee-  in  Blackwell  on  Tax  Titles,  p.  38,  el  scq.     See 

essary  to  execute  a  valid  warrant  appoiuting  also  Scott  v.  Watkins,  22  Ark.  556. 
overseers  of  the  poor.     King  v.  Forrest,  3D.  \  Williams  v.  Peyton's  Lessee,  4  Wheat, 

and   E.   38 ;    King  v.  Inhabs.  of  Haverstall  77.      See    also,    s.   P.    M'Clung    v.    Ross,   5 

Red  ware,  Ibid.  380.  Wheat.  116., 

An  authority  to  do  acts  merely  ministerial, 


304  TAX  SALES. 

the  sheriff  should  make  a  certain  return  and  certain  publications, 
it  was  held  by  the  Supreme  Court  of  the  United  States  that 
those  steps  must  be  strictly  taken,  and  that  they  must  also  ap- 
pear on  the  face  of  the  record.  And  as  they  did  not,  the  sale 
was  held  absolutely  void.*  So,  where  an  Arkansas  statute  pro- 
vides  that  before  a  sheriff  can  assess  land  for  taxes,  he  shall  file 
an  affidavit  by  a  certain  day,  and  the  assessment  by  a  certain 
other  day,  non-compliance  with  these  requisitions  has  been  held 
by  the  Supreme  Court  of  the  United  States,  to  make  the  assess- 
ment, and  of  course  the  sale  for  taxes,  invalid,  and  the  deed  void.f 

In  cases  of  this  nature,  it  has  been  held  by  the  States  gener- 
ally that  the  steps  prescribed  by  the  statute  must  all  be  strictly 
followed,  and  that  the  burthen  of  proof  is  on  the  party  who 
claims  a  right  under  the  summary  proceedings.  It  is  the  busi- 
ness of  the  purchaser  to  collect  and  preserve  all  the  facts  and 
muniments  of  title  on  which  the  validity  of  his  claim  depends. 
It  will  be  useful  to  notice  the  strictness  with  which  these  whole- 
some rules  have  been  applied.  So,  in  New  York  it  has  been 
held  that  a  power  to  sell  lands  for  taxes  imposed  thereon,  will 
not  authorize  a  sale  for  taxes  imposed  not  on  the  land  but  on 
the  owners  and  occupants.  Nor  will  a  power  given  to  sell 
for  taxes,  authorize  a  sale  for  a  mere  assessment  for  the 
construction  of  a  well  and  pump.  So,  if  a  tax  be  only  author- 
ized on  the  petition  of  a  majority  of  a  certain  class  of  parties 
interested,  the  purchaser  under  the  tax  sale  must  show  that 
those  who  signed  the  petition  were  a  majority.  So,  where  a 
demand  of  payment  is  made  necessary  before  sale,  it  must  be 
made;  so,  where  the  statute  directs  notice  of  an  assessment  to 
be  given  before  the  sale,  proof  is  required  that  the  requisite 
notice  was  given,  and  it  must  be  given  for  the  precise  time  re- 
quired by  the  statute.  So  too,  of  a  notice  to  redeem.;); 

In  the  same  State,  lands  are  under  various  statute  provisions 
sold  for  unpaid  taxes  by  the  State  comptroller ;  and  in  order  to 
authorize  him  to  do  so,  the  lands  must  have  been  assessed  in  due 
form  by  the  town  assessors,  taxed  by  the  county  supervisors,  a 

*  Thatcher  v.  Powell,  6  Wheat.  119.  See  j  Shnrp  v.  Speir,  4  Hill,  76;  Sharp  v. 

also  Jackson  v.  Esty,  7  Wend.  148.  Johns  .n,  4  Hill,  92  ;  St.iker  v.  Kelly,  7  Hill 

f  Parker  et  al.  v.  Overman,  18  Howard,  25;  and  3  l)uer,  323;  Doughty  v.  Hope,  3 

137.  Deuio,  594 ;  and  1  Corns.  79. 


TAX  SALES.  305 

certified  transcript  of  the  assessment  must  be  transmitted  by  the 
county  treasurer  to  the  comptroller,  with  the  collector's  affidavit 
that  the  taxes  are  unpaid,  and  the  tax  must  be  unpaid  for  two 
years  from  the  first  of  May  following  the  imposition  of  the  as- 
sessment, and  so  remain  at  the  time  of  the  sale.*  But  the  assess- 
ment is  fatally  defective  where  there  is  a  misdescription  of  the 
property,  such  as  might  probably  mislead  the  owner  if  his  ob- 
ject were  to  pay  the  taxes  or  to  redeem  after  the  sale.  So,  where 
a  lot  was  described  by  a  wrong  nuinber.f 

Again,  where  the  township  in  which  the  land  is  situated 
was  incorrectly  described,  J  the  sales  were  held  invalid  and  void. 
So,  where  a  statute  in  regard  to  sales  on  execution  provided 
that  the  time  and  place  of  sale  should  be  advertised  publicly, 
and  previously  for  six  weeks  successively,  first  by  the  posting 
of  a  notice  in  three  public  places,  and  secondly  by  publishing 
the  notice  once  a  week  in  a  country  newspaper, — the  notice  was 
properly  posted ;  but  the  notice  in  the  newspaper,  though  pub- 
lished six  weeks,  was  first  published  only  thirty-nine  days  pre- 
viously to  the  day  of  sale  ;  it  was  held  that  the  statute  was  im- 
perative, and  the  sale  void ;  ||  and  it  was  also  held  that  the  cir- 
culation of  the  notices  of  sale  in  slips  headed,  "  Plattsburg  Re- 
publican Extra,"  would  not  aid  the  plaintiff:  it  was  not  a  pub- 
lishing in  a  newspaper,  within  the  statute.  So  where  a  statute 
requires  personal  service,  a  notice  by  mail  though  it  reaches  the 
party  is  not  good. If 

Thus,  too,  in  Connecticut,  it  has  been  held  in  regard  to  the 
power  of  taxation,  that  statutory  requirements  must  be  strictly 
complied  with.  So,  where  the  assessors  omitted  to  lodge  an 
abstract  of  the  assessment  lists  in  the  town  clerk's  office  by  the 
first  of  December,  as  they  were  required  by  law  to  do,  though 
they  lodged  it  on  the  twentieth  of  the  month,  it  was  held  that 
the  assessment  lists  were  invalid,  and  that  no  tax  could  be  law- 
fully laid  or  collected  thereon.**  And  so  in  Michigan  also,  it 

*  1  R.  S.  391,  §§  11, 12,  13,  Isted.p.  395;  1  Rathbun  v.  Acker,  18  Barb.  393. 

§  33  ;  p.  399,  g  10  ;  p.  402-3,  §  26 ;    p.  407,  **  Thames  Manuf.  Co.  v.  Lathrop.  7  Conn. 

§52;  and  Jackson  v.  Morse,  18  J.  R.  441.  R.  550.     Where  also  held  that  to  a  statute 

f  Dike  v.  Lewis,  4  Denio,  237 ;    2  Barb,  explicitly  retrospective   to  a  certain   extent 

Ch.  344.  and  for  a  certain  purpose,  the  court  will  not 

1  Tallman  v.  White,  2  Comst.  66.  by  construction  give  a  retroactive  operation 

I  Olcott  v.  Robinson,  20  Barb.  148.  to  any  greater  extent  or  for  any  other  purpose. 

20 


306  TAX  SALES. 

has  been  decided  that  the  auditor  general  cannot  assume  the 
power  to  convey  lands  sold  for  taxes  on  foreclosure,  unless  it  is 
expressly  conferred  upon  him  by  the  statute.* 

As  to  the  very  important  matter  of  evidence  connected  with 
this  subject  we  may  notice,  that  a  deed  executed  by  a  city  cor- 
poration, purporting  to  be  given  on  a  sale  of  land  for  taxes,  and 
reciting  a  compliance  with  the  statutory  provisions,  does  not 
dispense  with  proof  of  the  facts.  The  recitals  in  the  conveyance 
are  not  evidence  against  the  owner  of  the  property  sold.f  But 
on  the  other  hand  it  has  been  held  in  New  York  to  be  com- 
petent for  the  Legislature  to  enact  that  any  conveyance  of 
lands  sold  for  taxes  executed  by  the  comptroller,  shall  be  pre- 
sumptive evidence  that  the  comptroller  had  authority  to  sell 
and  convey  the  land  described  in  it  for  arrears  of  taxes,  and  that 
all  the  previous  proceedings  required  by  law  had  taken  place  ; 
but  that  such  presumption  may  be  repelled  by  legal  evidence. J 
Perhaps  the  legislative  power  in  this  case  cannot  be  denied ; 
but  it  is  obvious  that  the  tendency  of  this  decision  is  to  defeat 
the  salutary  tendency  of  the  wholesome  rules  which  we  have 
just  considered.  In  cases  of  this  kind  where  the  question, 
whether  the  individual  is  divested  of  his  property  by  the  sum- 
mary proceedings  of  the  government,  depends  on  the  regularity 
of  the  proceedings,  to  declare  that  the  execution  of  a  deed  or 
any  other  similar  formality  is  prima  facie  proof  of  regularity, 
and  by  doing  this  to  throw  the  burthen  of  proving  a  negative 
on  the  original  owner,  is  in  a  multitude  of  cases  to  strip  him  of 
all  protection  whatever.  It  is  comparatively  easy  for  the  State 
and  its  agents  to  prove  that  certain  steps  have  been  taken.  In 
many  cases  it  is  impossible  to  prove  that  they  have  not  been 
taken,  however  certain  the  fact  may  be.  "  The  negative,"  Chief 
Justice  Marshall  has  said  in  a  case  of  this  kind,  "  will  not  admit 
of  proof."  1 

*  Sibley  v.  Smith  et  al.  2  Michigan,  486.  In  regard  to  this  branch  of  my  subject,  I 

f  Sharp  v.  Speir,  4  Hill,  76 ;  Striker  v.  take  pleasure  in  referring  to  Blackwell  on 

Kelly,  2  Denio,  323  ;  Beekman  v.  Bigham,  1  Tax  Sales — A  Practical  Treatise  on  the  power 

Selden,  366  ;  Hoyt  v.  Dillon,  19  Barb.  644.  .  to  sell  land  for  the  non-payment  of  taxes  as- 

\  Hand  v.  Ballon,  2  Kern.  541.  See  also  sessed  thereon — by  Robert  S.  Blackwell  Esq., 

Delaplaine  v.  Cook,  7  Wise.  44.  of  the  Illinois  Bar:  Chicago,  1855.  Mr.  Black- 

I  Williams  v.  Peyton's  Lessee,  4  Wheat,  well  has  exhausted  the  important  subject  of 

W-  tax  sales.  In  discussing  it  he  has  been  led  to 

consider  the  true  boundaries  of  judicial  and 


STATUTES  GIVING  COSTS.  307 

Statutes  of  Explanation. — It  lias  been  said  that  statutes  of 
explanation  shall  be  construed  only  according  to  their  words,, 
and  not  by  any  manner  of  intendment ;  for  it  is  incongruous,  it 
is  said,  for  an  explanation  to  be  explained.  "If  any  exposition," 
said  the  judges,  "  should  be  made  against  the  direct  letter  of  the 
exposition  made  by  Parliament,  there  will  be  no  end  of  ex- 
positions." ,  But  the  rule  has  been  denied;  and,  indeed,  it 
seems  to  be  founded  rather  on  a  conceit  than  a  reason.* 

Stamp  Acts. — The  English  acts  imposing  stamp  duties  are, 
it  is  said,  to  be  construed  strictly ;  f  so,  too,  there  it  has  been 
said,  that  statutes  giving  costs  are  to  be  regarded  as  inflicting  a, 
kind  of  penalty, .and  to  be  construed  strictly.^  There  would 
be  little  interest  or  instruction  in  giving  any  minute  or  de- 
tailed attention  to  the  very  numerous  decisions  of  statutes  giv- 
ing costs ;  but  I  cannot  refrain  from  calling  attention  to  the 
illustration  which  the  idea,  that  statutes  awarding  costs  are  to 
be  construed  strictly,  furnishes  of  the  frequent  unreasonableness 
of  the  distinction  between  liberal  and  strict  construction.  Costs 
are  not  in  any  proper  sense  a  penalty.  They  are  a  partial  re- 
muneration to  a  prevailing  party  for  the  injury  he  has  sustained 
by  the  presentation  of  an  illegal  demand,  or  the  resistance  to 
legal  claim.  If  the  decisions  of  the  law  are  in  a  majority  of 
cases  equitable,  costs  are  in  most  cases  due  not  only  in  law,  but 
in  justice ;  and  it  seems  very  extraordinary  to  say  that  a  remedy 
of  this  kind  is  to  be  strictly  construed,  which  means  unfavor- 
ably regarded.  But  the  truth  is,  that  the  judges  have  perpetu- 
ally taken  refuge  in  the  clouds  and  mists  of  strict  and  liberal 
construction  whenever  they  have  been  pressed  by  the  hardship 
or  injustice  of  a  particular  case. I 

legislative  power ;  and  his  two  first  chapters,  Worrington  v.  Furbor,  8  East,  242 ;  Dwams, 

on  the  fundamental  principles  which  control  the  646. 

taxing  power,  and  of  the  nature  of  the  power  to  \  Cone  v.  Bowles,!  Salk.  R.  205  ;     Rex 

sell  land  for  the  non-payment  of  taxes,  and  of  v.  Inhab.  of  Glastonby,  Cases  Temp.  Hardw. 

the  strictness  required  in  such  sales,  contain  a  357  ;   Dwarris,  p.  644. 

close  and  searching  discussion  of  the  whole  |  In  regard  to  costs,  the  New  York  Code  of 
subject.  He  arrives  at  the  result  that  the  Procedure  declares  what  seems  to  be  the  true 
only  safe  and  tolerable  rule  of  interpretation  rule,  §  5.03:  All  statutes  establishing  or  regu- 
in  cases  free  from  ambiguity  is,  that  the  judi-  lating  the  costs  and  fees  of  attorneys,  solici- 
ciary  should  confine  themselves  to  a  strict  tors,  and  counsel,  in  civil  actions,  and  all  ex- 
obedience  to  the  legislative  will.  isting  rules  and  provisions  of  law,  restricting 

*  Dwarris,  628 ;  Butler  and  Baker's  Case,  or  controlling  the  right  of  a  party  to  agree 

3  Rep.  31  a;  Dean  and  Chapter  of  Norwich's  with  an  attorney,  &c.  for  his  compensation  are 

Case,  3  Rep.  75.  repealed ;  and  the  measure  of  such  compensa- 

f  Tompkins  v.    Ashby,  6  B.  &  C.  541 ;  tionisleftto  the  agreement,  express  or  implied, 


308  REMEDIAL   STATUTES. 

We  have  thus  far  considered  those  classes  of  statutes  which 
are,  as  it  has  been  said,  to  be  strictly  construed.  In  doing  this, 
we  have  had  occasion  to  see  how  much  uncertainty  and  contra- 
diction there  is  in  the  rule ;  and  that  as  applied  and  expounded 
by  our  modern  tribunals,  it  seems  to  tend  to  take  the  form  of 
the  doctrine  that  in  all  cases  statutes  are  to  be  faithfully  con- 
strued, so  as  to  carry  oat  the  intention  of  the  Legislature  when- 
-ever  the  intent  can  be  ascertained.  Pursuing  the  same  exam- 
ination of  the  authorities,  we  now  turn  to  a  contrary  class  of 
cases,  in  which  it  has  been  held  that  statutes  are  to  be  liberally 
construed. 

4 

Remedial  Statutes,  (a) — "  There  can  be  no  question,"  says 

of  the  parties ;  but  there  may  be  allowed  to  the  the  action,  which  allowances  are  called  costs  ; 
prevailing  party  upon  the  judgment  certain  — and  there  may  be  in  certain  cases  addi- 
sums  by  way  of  indemnity  fur  his  expenses  in  tional  allowances. 

(a)  Remedial  Statutes  are  to  be  construed  liberally,  and  so  as  to  remove  the  evil 
and  extend  the  benefit  proposed.  White  v.  Steam  Tug,  6  Cal.  462.  Thus  "  towing" 
is  included  within  "transportation  of  property,"  in  a  statute  as  to  common  carriers. 
Ibid.  Everything  is  to  be  done  to  advance  the  remedy  which  can  be  done  consist- 
ently with  fair  construction.  Chicago  &c.  R.  R.  v.  Dunn,  52  111.  260.  Thus  the  time 
within  which  an  act  is  prescribed  to  be  done  by  such  statute,  if  not  made  essential 
by  express  terms,  will  not  be  regarded  as  so  by  construction.  Ryan  v.  Valandingham, 
7  Incl.  416.  And  a  statute  providing  a  remedy  on  official  bonds,  "not  in  the  penalty 
payable  and  conditioned  as  prescribed  by  law,"  was  held  to  apply  to  bonds  that  were 
conditioned  as  prescribed  by  law,  but  were  not  executed,  approved,  and  filed  within, 
the  time  prescribed.  Sprowl  v.  Lawrence,  33  Ala.  674. 

It  has  been  held,  however,  that  remedial  statutes  in  derogation  of  the  common 
law  do  not  come  within  this  rule.  Bailey  v.  Bryan,  3  Jones  Law,  357 ;  but  see  note 
ante,  upon  "Statutes  in  Derogation  of  the  Common  Law,"  and  the  absurdity  of  such 
an  exception  is  seen  from  the  fact  that  every  remedial  statute  must  of  necessity  be  in 
derogation  of  the  common  law. 

A  statute  extending  the  right  of  appeal  is  remedial,  and  may  be  carried  by  con- 
struction beyond  but  not  against  the  strict  letter,  and  even  retrospectively,  if  no 
vested  right  is  thereby  interfered  with.  Converse  v.  Burrows,  2  Minn.  229.  A  stat- 
ute giving  to  absent  creditors  further  time  for  proof  of  claims  against  the  estates  of 
deceased  persons  is  remedial,  and  is  to  be  construed  so  as  to  extend  the  remedy,  and 
applies  to  a  creditor  who  is  absent  during  the  publication,  but  returns  afterwards. 
Cullerton  v.  Mead,  22  Cal.  95.  The  following  are  other  illustrations  of  remedial 
statutes  to  which  the  rule  has  been  applied:  allowing  the  original  owner  to  redeem 
from  a  tax  sale.  Jones  v.  Collins,  16  Wise.  594.  Extending  the  landlord  and  tenant 
process  to  new  cases.  Jackson  v.  Warren,  32  111.  331.  For  the  recovery  of  the  ex- 
pense of  improving  sidewalks  from  abuttors.  Hudler  v.  Golden,  36  N.  Y.  446.  Giv- 
ing a  municipality  the  right  to  sell  for  taxes.  Haskell  v.  Burlington,  30  Iowa,  232, 
sed  quaere.  Requiring  railroads  to  fence  their  tracks,  etc.  Ohio  &c.  R.  R.  v.  Bruba- 
ker,  47  111.  462. 


REMEDIAL   STATUTES.  300 

Mr.  Dwarris,  "  tliat  the  words  of  a  remedial  statute  are  to  be 
construed  largely  and  beneficially,  so  as  to  suppress  the  mischief 
and  advance  the  remedy."*  It  is  by  no  means  unusual  in  con- 
struing a  remedial  statute,  it  has  been  said,  to  extend  the  enact- 
ing words  beyond  their  natural  import  and  effect,  in  order  "to 
include  cases  within  the  same  mischiefs."  f  On  this  ground  in 
the  Magdalen  College  case,  notwithstanding  the  general  rule 
that  the  crown  is  not  affected  except  by  express  words,  it  was 
held  that  the  queen  was  bound  by  an  act  couched  in  general 
terms.  "It  was  never  seen,"  says  Lord  Coke,  "that  an  act 
made  for  the  maintenance  of  religion,  advancement  of  learning,, 
and  exhibitions  of  poor  scholars,  and  therefore  to  be  favorably 
expounded,  should  be  so  construed  that  a  byway  should  be  left 
open,  by  which  the  said  great  and  dangerous  mischiefs  should 
remain,  and  the  necessary  and  profitable  remedy  be  suppressed,, 
and  the  queen  made  an  instrument  of  injury  and  wrong."  J 
"In  remedial  cases,"  says  Lord  Mansfield,  "the  construction  of 
statutes  is  extended  to  other  cases  within  the  reason  and  rule 
of  them."  I 

So  again,  it  has  been  held  in  the  case  of  a  remedial  act,  that 
every  thing  is  to  be  done  in  advancement  of  the  remedy  that 
can  be  given,  consistently  with  any  construction  that  can  be 
put  upon  it.  T  So,  under  the  statute  against  frauds  (13  Eliz. 
c.  5),  the  words  "  good  consideration,"  were  held  to  exclude  the 
consideration  of  nature  or  blood,  and  to  mean  money,  or  other 
valuable  consideration,  on  the  ground  that  otherwise  the  statute 
would  serve  for  little  or  nothing,  and  no  creditor  would  be  sure 
of  his  debt.  **  So,  too,  statutes  against  frauds  are,  it  is  said, 
always  liberally  and  beneficially  expounded.  "  Chancery  will 
aid  remedial  laws,"  said  Lord  Keeper  Wright,  "  though  they 

*  Dwarris,  p.  632.  on  a  statute  against  bribery ;  the  affirmations 

f  St.  Peters,  York,  Dean  and  Ch.  v.  Mide-  of  Quakers  were  at  that  time  (1776)  received 

borough,  2  Y.  <fc  J.  196.  in  civil  but  not  in  criminal  cases.     It  turned, 

fll  Reports,  67,  716.  therefore,  on  the  point  whether  the  case  was 

Atcheson  v.   Everitt,  Cowp.    382,    391.  a  criminal  one;  and  Lord  Mansfield  holding 

"But,"  aiids  his  Lordship,    "where  it  is  a  it  to  be  a  penal  and  not  a  criminal  action,  the 

hard,  positive  law,  and  the  reason  is  not  very  affirmation  was  received.     The  report  is  a 

plainly  to  be  seen,  it  ought  not  to  be  extended  very  interesting  one. 

by  construction."    In  this  case,  the  question  ^[  Johnes  v.  Johnes,  3  Dow,  15;  Dwarris, 

was  whether  a  Quaker  could  be  received  to  654. 
testify  on  his  affirmation  in  an  action  of  debt          **  Dwarris,  654,  655. 


310  REMEDIAL  STATUTES. 


are  called  penal,  not  by  making  them  more  penal,  but  by  let- 
ting them  have  their  course." ' 

In  this  country,  too,  it  has  been  repeatedly  held  that  reme- 
dial or  beneficial  statutes  are  to  be  liberally  construed.f  So, 
an  act  "  to  prevent  the  insolvency  of  moneyed  corporations," 
has  been  declared  to  be  a  beneficial  statute,  not  to  be  defeated 
l>y  a  narrow  construction ;  and  held  that  any  act  which  the  di- 
rectors were  prohibited  from  doing,  would  be  equally  illegal  and 
void  if  done  by  any  other  officer  or  agent  of  the  bank.^  So,  in 
Maryland  an  act  passed,  as  its  preamble  declared,  to  do  away 
"a  most  oppressive  and  pernicious  practice,"  was  declared  a 
remedial  statute,  and  to  be  liberally  construed.  |  In  New  York, 
.also,  in  regard  to  the  act  for  the  incorporation  of  religious 
societies,  it  had  been  said  by  the  Supreme  Court — "  We  must 
give  the  statute  a  reasonable  and  liberal  construction,  for  the 
benefit  of  the  churches."  ^f 

Sometimes  the  act  itself  declares  that  it  shall  be  liberally 
'construed.  So,  the  act  incorporating  the  House  of  Refuge  in 
the  city  of  New  York,  declares  "  that  it  shall  be  construed  in  all 
courts  and  places  benignly  and  favorably,  for  every  humane  and 
laudable  purpose  therein  contained."  **  Indeed,  in  one  case  in 
New  York,  a  very  able  and  learned  judge  claimed  for  statutes 
generally  a  liberality  and  flexibility  that  would  put  an  effectual 
^end  to  all  rules  of  interpretation  or  construction.  "  My  judg- 
ment," says  Mr.  Chancellor  Jones,  "  must  be  borne  down  by  the 
force  and  weight  of  authority,  before  I  can  deny  to  legislative 
enactments  the  liberal,  benign,  and  equitable  construction  which 
will  give  them  the  attributes  of  a  nursing  mother  equally  with 
the  common  law."ff 

A  statute  may  be  penal  in  one  part,  and  remedial  in  another 
part. %  J  And  in  the  same  act  of  Parliament  a  strict  construction 
may  be  put  on  a  penal  clause,  and  a  liberal  construction  on  a 

*  Ch.  Prac.  215;  Dwarris,  653.  trustees  of  a  religious  corporation  to  be  annu- 

•j-  Admx.  of  Tracy  v.  Admr.  of  Card,    2  ully  chosen,  that  an  annual  election  held  each 

Ohio  State  Rep.  N.  S.  431.  year  on  Pinxter  Monday  (Monday  after  Whit- 

}  Gillet  v.  Moody,  3  Corns.  479.     The  re-  Sunday),  though  a  movable  holiday,  and  not  a 

mark  was,  it  is  true,  obiter.  day  certain,  was  good. 

||  State,  use  of  l^prigg,  v.  Jones  et   al.  8          **  Act  of  29th  March,  1824,  c.  126,  §  7. 
Maryland,  p.  88.  ff  White  v.  Carpenter,  2  Paige,  217,  229. 

fThe   people   v.   Runkel,   9   J.  R.    147.  \\  Hyde  v.  Cogan,  Douglas,  702;  Dwar- 

Where  held  under  a   statute  requiring  the  ris,  655. 


EQUITY  OF   A  STATUTE.  311 

remedial  clause.  This  has  been  done  in  regard  to  the  statutes 
which  make  it  a  felony  to  burn  a  house,  or  other  property,  and, 
at  the  same  time,  give  those  who  suffer  from  the  felony  a 
remedy  against  the  hundred.* 

The  Equity  of  a  Statute  is  immediately  connected  with  this 
branch  of  our  subject. (a)  This  doctrine  which  has  been 
applied,  as  we  have  seen,  to  the  statute  of  frauds  and  the  regis- 
try laws  and  the  statute  of  limitations,  grew  out  of  the  peculiar 
ideas  that  were  engendered  in  the  minds  of  the  English  lawyers 
by  the  double  organization  of  the  tribunals  of  justice :  while 
the  common-law  courts  sat  to  administer  the  strict  rules  of  law 
the  courts  of  equity  arrogated  to  themselves  the  duty  of  doing 
justice  on  a  more  enlarged  and  liberal  scale,  and  in  the  early 
days  of  their  organization  carried  their  power  so  far  as  to  over- 
ride the  express  words  of  statutes  where  in  the  particular  case 
it  appeared  to  them  to  work  hardship  or  inconvenience.  This 
power  in  regard  to  statutes  is,  however,  now  looked  on  with 
distrust;  and  courts  of  chancery  endeavor  to  adhere  to  the 
much  more  logical  rule  that  equity  follows  the  law.  It  cannot 
be  denied,  however,  that  a  large  class  of  exceptions  has  been 
introduced  and  established.  Indeed,  there  is  nothing  more  curi- 
ous in  the  history  of  jurisprudence  than  the  successful  efforts  of 
courts  of  equity  to  defeat  the  operation  of  the  statute  of  frauds 

*  Dwarris,  656. 

(a)  Equity  of  Statutes. — Where  the  language  is  unambiguous,  there  is  no  room  for 
construction.  Thus  where  a  statute  of  Connecticut  validated  deeds  of  land,  "  exe- 
cuted and  acknowledged  in  any  other  State,  etc.,  in  conformity  with  the  laws  of  such 
State,  etc.,  relative  to  the  conveyance  of  lands  therein  situated,"  it  was  held  not  to 
apply  to  a  deed  executed  in  New  York  of  land  in  Connecticut,  defective  if  executed 
in  Connecticut,  because  it  had  but  one  witness,  and  not  in  conformity  with  the  law 
of  New  York,  because  it  was  acknowledged  before  a  Connecticut  commissioner. 
Farrell Foundry  v.  Dart,  26  Conn.  376. 

The  rule  as  to  the  equity  of  a  statute,  is  said  to  be  especially  applicable  to  statutes 
concerning  practice  and  procedure.  Hoguet  v.  Wallace,  4  Dutch.  523. 

Where  a  statute  enacted  that,  in  the  case  of  sales  theretofore  or  thereafter  made 
under  the  provisions  of  a  specified  chapter  and  section  of  the  Revised  Statutes,  the 
burden  of  showing  certain  irregularities  should  be  on  the  one  objecting  to  the  sale, 
it  was  held  to  apply  to  sales  made  under  earlier  statutes  of  a  similar  purport  to  the 
designated  chapter  and  section.  Chandler  v.  Northrop,  24  Barb.  129. 

A  person  accused  of  crime  cannot  be  convicted,  on  the  ground  that  he  comes 
within  the  equity  of  a  statute.  U.  S.  V.  Ragsdale,  1  Hemps.  497. 


312  STATUTES  LIBERALLY  CONSTRUED. 

requiring  agreements  for  the  sale  of  lands  to  be  in  writing.* 
So,  the  statute  was  disregarded  in  cases  where  the  contract 
though  not  in  writing  was  admitted  in  the  answer,  subject, 
however,  to  the  question  wrhether  the  benefit  of  the  statute  wras 
insisted  on.  So  again,  where  the  bargain  has  been  in  part  per- 
formed, subject,  however,  to  the  question  what  is  a  part  per- 
formance. In  cases  of  this  kind  and  in  others  the  courts  of 
equity  treated  the  statute  very  much  as  if  it  had  never  been 
made,  not,  however,  without  the  protest  of  very  able  judges,  f 
Mr.  Justice  Story  says,  "  It  is  obvious  that  courts  of  equity  are 
bound  as  much  as  courts  of  law  by  the  provisions  of  this  stat- 
ute, and  therefore  they  are  not  at  liberty  to  disregard  them. 
That  they  do,  however,  interfere  in  some  cases  within  the  reason 
of  the  statute  is  equally  certain."  J 

At  law  a  judgment  is  a  general  lien  upon  all  the  legal  in 
terest  of  the  debtor  in  his  real  estate;  but  in  chancery  that  gen- 
eral lien  is  controlled  by  equity  so  as  to  protect  the  rights  of 
those  who  are  entitled  to  an  equitable  interest  in  the  lands  or 
in  the  proceeds  thereof.  | 

Some  other  cases  where  statutes  have  been  liberally  con- 
strued, may  here  be  noticed,  (a)    The  Massachusetts  statute  of 

*  The  subject  is  treated  at  large  by  Mr.  \  Story,  Eq.  Jurisprudence,  §  754. 

Justice  Story,  in  his  work  on  Equity  Juris-  |  W  bite  v.  Carpenter,  2  Paige,  2 1 7  ;  Keir- 

prudence,  §§  753,  etscq.     See  ante,  p.  83.  sted  v.  Avery,  4  Paige,  9;    Buchan  v.  Sum- 

•j-  See   Lord     Redesdale,    in    Lindsay  v.  ner,  2  Barb.  Ch.  R.  165. 
Lynch,  2  Sch.  and  Lef.  5,  7,  8. 

(a)  Liberal  Construction. — The  following  are  some  illustrations  of  statutes  and  classes 
of  statutes  to  which  the  rule  of  liberal  construction  has  been  applied:  Those  intended 
to  promote  the  public  convenience,  e.  g.,  an  act  giving  power  to  the  corporation  of 
N.  Y.  City,  to  enlarge  the  slips  for  shipping,  was  held  to  include  lengthening  as  well 
as  widening,  and  not  to  be  limited  to  those  already  existing.  Marshall  v.  Vultee,  1 
E.  D.  Smith,  294  ;  statutes  as  to  arbitrations,  Tuskaloosa  Bridge  Co.  v.  Jemison,  33 
Ala.  476;  but  per  contra,  Burnside  v.  Whitney,  21  N.  Y.  148;  homestead  exemption 
laws,  Charless  v.  Lamberson,  1  Clarke  (la.)  435 ;  statutes  allowing  judgments  ob- 
tained by  fraud  to  be  opened,  Sharp  v.  N.  Y.  31  Barb.  572 ;  acts  regulating  practice 
and  procedure  so  far  as  they  are  remedial,  Hoguet  v.  Wallace,  4  Dutch.  523,  where  a 
statute  allowing  judgment  in  vacation  on  nil  elicit  was  held  to  authorize  such  judg- 
ment on  a  cognovit  as  within  the  equity  of  the  act ;  statutes  allowing  appeals,  Pear- 
son v.  Lovejoy,  53  Barb.  407. 

Clauses  in  favor  of  persons  from  whom  property  is  to  be  summarily  taken  ;  e.  g., 
clauses  providing  in  favor  of  tax  payers,  that  assessors  shall  sit  so  many  days  to  re- 
vise assessments,  .are  to  receive  a  construction  most  favorable  to  the  tax  payers. 
Walker  v.  Chicago,  56  111.  277.  Statutes  for  redemption  from  tax  sales  are  to  be 


STATUTES   LIBERALLY  CONSTRUED.  313 

trustee  process,  or  for  reaching  the  property  of  a  debtor  in  the 
hands  of  third  persons,  declares  that  every  person  having  any 
goods,  effects,  or  credit  of  the  principal  defendant,  intrusted  or 
deposited  in  his  hands  or  possession,  may  be  summoned  as 
trustee.  In  an  action  under  the  statute  the  alleged  trustee  ad- 
mitted that  he  had  a  cow  of  the  defendant's  in  his  possession,  but 
averred  that  he  had  no  claim  to  her  of  any  kind  whatever,  and 
insisted  on  this  ground  that  he  could  not  be  summoned  as  a 
trustee.  It  was  said  by  the  court  that,  admitting  that  accord- 
ing to  the  letter  of  the  statute  the  defendant  was  liable,  still 
"that  statutes  are  to  be  construed  according  to  the  intentions 
of  the  makers,  if  these  can  be  ascertained  with  reasonable  cer- 
tainty, although  such  construction  may  seem  contrary  to  the 
ordinary  meaning  of  the  letter  of  the.  statute;  "  and  it  was 
added,  "  We  think  it  never  could  have  been  the  intention  of  the 
Legislature  that  the  possession  of  property  by  a  party  having 
no  claim  to  hold  it  against  the  owner  should  render  him  liable 
therefor  as  trustee,  and  thereby  subject  him.  to  trouble  and  ex- 
pense in  answering  a  claim  in  which  he  has  no  interest.  Such 
a  construction  of  the  statute  would  be  prejudicial  in  many  cases, 
and  cannot  be  admitted."  * 

An  interesting  question  on  the  construction  of  railroad  acts, 
has  arisen  in  Massachusetts.  A  charter,  passed  in  1845,  author- 
ized a  railroad  corporation  to  make  a  branch  from  the  village 
of  Cabotville  to  that  of  Chicopee  Falls,  without  defining  the 
route.  The  road  was  laid  down  on  a  main  street  or  highway 
in  Cabotville.  On  a  bill  filed  for  an  injunction,  it  was  said  that, 
by  a  railroad  grant  in  such  general  terms,  prima  facie  the 
power  to  run  on  the  highway  could  not  be  inferred,  as  the  use 
of  it  by  the  railroad  was  inconsistent  with  its  original  destina- 
tion. That  such  power  could  only  be  given  by  express  words 
or  necessary  implication.  That  such  necessary  implication  might 
arise  from  the  application  of  the  act  to  the  subject-matter,  as  for 

*  Staniels  and  another  v.  Raymond,  &c.  Trustee,  4  Gush.  314. 

liberally  construed  in  favor  of  the  owners,  and  especially  so  when  they  provide  in- 
demnity for  the  purchaser,  and  impose  a  penalty  on  the  delinquent,  Corbett  v.  Nutt, 
10  Wall.  464.  Acts  conferring  a  limited  jurisdiction  are  to  be  strictly  construed  as 
to  jurisdiction,  but  liberally  as  to  procedure.  Russell  v.  Wheeler,  1  Hemps.  8. 


314  STATUTES   LIBERALLY  CONSTRUED. 

instance  if  the  railroad  could  not  by  reasonable  intendrnent  be 
laid  on  any  other  line  ;  and  it  was  referred  to  commissioners  to 
ascertain  the  fact.* 

In  a  great  fire  which  took  place  in  the  city  of  New  York, 
in  December,  1835,  a  building  owned  by  Rufus  L.  Lord,  and 
occupied  by  Daniel  N.  Lord  as  his  tenant,  for  a  year  from  1st 
May,  1835,  was  destroyed  by  the  order  of  the  mayor,  to  prevent 
the  spreading  of  the  conflagration.  The  statute  authorizing 
the  action  of  the  mayor  in  similar  cases,  provided  if  any  build- 
ing was  so  destroyed,  that,  upon  the  application  of  any  person 
interested  in  such  building,  a  precept  should  issue  for  a  jury  to 
inquire  of,  and  assess  the  damages  which  the  owner  of  such 
building,  and  all  persons  having  any  estate  or  interest  therein, 
should  have  sustained  by  the  destruction,  and  after  inquiry 
and  assessment,  the  sum  assessed  should  be  paid  in  full  satisfac- 
tion of  all  demands  of  such  persons  respectively  by  reason  of 
the  destruction  of  the  buildings  ;  the  sum  assessed  for  any  build- 
ing so  destroyed  as  aforesaid,  to  be  borne  and  defrayed  by  the 
city  government.  The  damages  of  the  owner  of  the  building 
were  assessed  at  $7,168  50,  and  of  the  tenant,  for  his  goods, 
$156,27480;  but  it  was  insisted  that,  by  the  words  of  the 
statute,  no  recovery  could  be  had  for  anything  but  the  building, 
and  that  injury  to  personal  property  in  it  was  not  covered. 
The  entire  assessment  was,  however,  sustained,  on  the  ground 
that  the  statute  was  remedial,  and  should  be  liberally  con- 
strued.f 

*  Inhabs.  of  Springfield  v.  Conn.  River  R.  The  Mayor  <fec.  of  New  York,  25  Wend.  177, 
R.  Co.  4  Cush.  63.  I  may  be  permitted  to  say,  an  effort  was  made  to  carry  the  construction 
that  unless  the  Supreme  Court  of  Massachu-  of  the  statute  so  far  as  to  entitle  the  lessee  of 
setts  have  some  statutory  power  peculiar  to  a  building  destroyed  by  order  of  the  mayor 
themselves,  and  to  that  State,  the  true  course  to  recover  for  merchandise  destroyed,  which 
would  seem  to  have  been  to  decide  the  case  did  not  belong  to  the  lessee,  but  was  the  prop- 
on  the  words  of  the  act.  To  refer  the  case  to  erty  of  others,  in  his  possession  as  a  factor, 
commissioners  on  a  question  of  fact  as  to  the  or  merely  on  storage;  but  this  interpretation 
practicability  of  running  the  road  on  the  street,  was  rejected. 

if  that  question  had  not  been,  considered  be-  In  Russell  v.  The  Mayor  &c.  of  New  York, 
fore  the  passage  of  the  act,  was  to  substitute  2  Denio,  461,  the  authority  conferred  on  the 
the  judgment  of  the  commissioners  for  that  of  mayor,  by  this  statute,  was  said  not  to  be  a 
the  Legislature.  If  the  Legislature  had  con-  grant  of  the  right  of  eminent  domain,  and 
sidered  the  question.it  was  a  revision  of  their  therefore  not  within  the  constitutional  pro- 
decision  on  a  matter  of  which  they  should  be  vision  as  to  private  property ;  but  that  it  was 
the  sole  judges.  only  a  regulation  of  the  right  which  individ- 

f  Mayor  of  New  York  v.  Lord,  17  Wend,  uals  possess,  in  cases  of  inevitable  necessity, 

285  ;  18  Ibid.  126.     See  Mr.  Justice  Bronson's  to  destroy  property  to  prevent  an  impending 

able  dissenting  opinion.  calamity. 

In  a  subsequent  case,  Stone  and  others  v. 


STATUTES  LIBERALLY  CONSTRUED.  315 

In  regard  to  the  New  York  act,  enabling  limited  partner- 
ships to  be  formed  by  making  certain  publications  specified  by 
the  statute,  and  declared  necessary  in  order  to  restrict  the 
liability  of  the  special  partner,  it  has  been  held,  that  the  terms 
of  the  statute  must  be  substantially  complied  with,  but  that 
mere  errors  of  form,  either  unintentional,  or  not  calculated  to 
mislead,  will  be  overlooked.  So,  the  mistake  in  the  printed 
notice  of  one  month  for  another,*  or  the  misprint  of  a  name,f 
not  likely  to  lead  into  error,  will  be  disregarded ;  but  a  mis- 
print of  the  sum  put  in  as  capital,  as  where  it  is  asserted  to  be 
jive  thousand  instead  of  two,  is  regarded  as  fatal,  and  converts 
the  special  into  a  general  partner.  J 

A  statute  relating  to  principals  and  factors  declared,  that 
one  intrusted  with  the  possession  of  the  goods  of  another  for 
the  purpose  of  sale,  should  be  deemed  the  true  owner,  so  far  as 
to  give  validity  to  a  disposition  thereof  for  money  advanced, 
upon  which  it  has  been  held  in  New  York,  that  this  does  not 
protect  a  party  who  had  made  advances  to  such  factor,  with  a 
knowledge  that  he  was  not  the  owner  of  the  goods,  on  the 
ground  that  a  contrary  construction  would  authorize  the  agent 
or  factor,  by  connivance  to  commit  a  fraud  on  the  principal.  ( 

So,  where  the  United  States  bankrupt  act  declares  (act  of 
1841,  §4),  that  the  certificate  may  be  pleaded  as  a  full  bar,  it 
has  been  held  that  the  word  pleaded  was  not  to  be  strictly 
construed,  and  that  the  certificate  might  be  proved  under  a 
notice  attached  to  the  plea,  under  the  old  system  of  pleading.  ^ 

A  statute  restraining  any  person  from  doing  certain  acts, 
applies  equally  to  corporations  or  bodies  politic,  although  not 
mentioned.** 

We  have  thus  far  examined  two  classes  of  decisions,  one  in 
which  statutes  have  been  strictly  construed,  and  another  in 
which  they  have  been  liberally  or  equitably  interpreted.  Our 

*  Madison  Co.  Bank  v.  Gould,  5  Hill,  309.  person  embraces  the   State,  foreign  govern- 

f  Bowen  v.  Argall,  24  Wend.  496.  ments,  autt  corporations,  i.  e.,  when  the  word 

i  Smith  v.  Argall,  6  Hill,  479.  person  is  used  to  designate  the  party  whose 

Stevens  v.  Wilson,  3  Denio,  472,  475.  property  may  be  the  subject  of  any  offence. 

Tf  Campbell  v.   Perkins,   4  Selden,  430 ;  2  R.  S.  part  iv,  chap,  i,  title  7,  §  36.     The 

Ruckman  v.  Cowell,  1  Comstock,  505.  Revised  Statutes  have  in  many  cases,  defined 

**  People  v.  Utica  Ins.  Co.  15  J.  R.  358,  the  meaning  of  the  terms  made  use  of  by  the 

381,  382.     By  the   Revised   Statutes  of  New  revisors.     See  Index,  tit.  Definitions. 
York,   in  certain   criminal  cases,   the   word 


316          STATUTES  WHEN  TREATED  AS  DIRECTORY. 

consideration  of  the  subject  will  not,  however,  be  complete,  till 
we  shall  have  discussed  the  very  curious  class  of  cases  in  which 
the  legislative  enactment  is  neither  strictly  nor  liberally  con- 
strued, but  simply  disregarded  altogether.  This  takes  place 
where  the  mandate  of  a  statute  is  called,  and  regarded  as, 
directory. 

Statutes  when  held  to  be  Directory,  (a) — When  statutes  direct 

(a)  Directory  and  Mandatory. — Affirmative  words,  without  negative,  are  often 
held  directory;  thus  a  statute  declaring  that  a  fi.fa.  shall  issue,  and  on  its  return, 
etc.,  a  ca.  sa.  does  not,  it  seems  render  void  a  ca.  sa.  issued  in  the  first  instance,  there 
being  no  negative  words.  State  v.  Baker,  9  Kich.  Eq.  521.  Statutes  prescribing 
the  time  within  which  an  act  shall  be  done,  without  any  negative  or  prohibitory 
words,  are  directory.  State  v.  Harris,  17  Ohio,  N.  S.  608,  where  a  tax  was  directed 
to  be  levied  in  the  year  1866,  and  it  was  held  that  it  could  be  levied  in  another 
year.  Looney  v.  Hughes,  30  Barb.  605 ;  Tuohy  v.  Chase,  30  Cal.  524 ;  People  y. 
Lake  Co.  33  Cal.  487  ;  People  v.  Rochester,  5  Lans.  11;  Shaw  v.  Orr,  30  Iowa,  355; 
Corbett  v.  Bradley,  7  Nev.  106 ;  State  v.  Homer,  34  Md.  569.  Where  a  statute 
defines  the  time  within  which  an  act  may  be  done,  e.  g.,  where  it  allows  ten  days  for 
filing  an  answer,  it  may  be  done  at  any  time  until  some  action  of  the  court  or  of  the 
adverse  party  concludes  the  right.  Lewis  v.  Labauve,  13  La.  Ann.  382.  But  in 
People  v.  McCreery,  34  Cal.  432,  the  time  of  levy  was  held  mandatory.  Also  statutes 
as  to  the  time  within  which  laws  are  to  be  published  may  be  treated  as  directory, 
but  still  the  publication  cannot  be  indefinitely  postponed,  the  fact  that  wrong  and 
injury  may  result  from  the  delay,  making  some  reasonable  limit  necessary.  State  v. 
Lean,  9  Wise.  279. 

A  license  law  prescribing  what  books  should  be  kept  with  tabular  forms,  etc., 
and  declaring  sales  void,  where  there  was  any  breach  of  the  act,  a  substantial  com- 
pliance was  held  sufficient.  Barnard  v.  Houghton,  34  Vt.  264. 

Enabling  statutes  impliedly  prohibit  any  other  than  the  statutory  mode  of  doing 
the  act,  e.  g.,  a  statute  enabling  married  women  to  convey  their  property  and  pre- 
scribing the  mode  of  acknowledging  their  deeds.  Dalton  v.  Murphy,  30  Miss.  59. 

The  following  are  illustrations  of  statutes  and  provisions  which  have  been  held 
mandatory;  a  provision  that  sheriffs'  sales  should  be  at  the  court-house,  it  being 
essential  for  the  protection  of  debtors,  and  there  being  certain  excepted  cases 
specified  in  the  statute.  Koch  v.  Bridges,  45  Miss.  247 ;  a  statute  prescribing  the 
requisites  of  a  bond  to  be  given  before  an  attachment  is  issued.  Blake  v.  Sherman, 
12  Minn.  420.  A  provision  in  an  act  consolidating  a  city  and  county  that  surviving 
debts  should  be  paid,  although  an  ordinance  was  necessary  to  carry  out  the 
command,  and  a  mandamus  for  that  purpose  was  granted.  Frank  v.  San  Francisco, 
21  Cal.  668.  Where  a  statute  imposes  a  duty,  and  gives  the  means  of  performing  it, 
e.  g.,  furnishing  aid  to  families  of  volunteers.  Veazie  v.  China,  50  Me.  518 ;  Milford 
v.  Orono,  Ib.  529.  A  provision  that  a  person  serving  a  summons,  should  indorse  the 
date  of  the  service  thereon.  Wendel  v.  Durbin,  26  Wise.  390.  A  provision  for  the 
proclamation  of  a  vacancy  and  of  an  election  to  fill  the  same,  before  holding  such 
election.  McKune  v.  Weller,  11  Cal.  49.  A  statute  which  prohibits  one  thing  until 
another  is  done,  is  mandatory.  Stayton  v.  Hulings,  7  Ind.  144. 

Power  conferred  by  statute  on  public  officers,  concerning  rights  of  third  parties, 


STATUTES    WHEN    TREATED    AS  DIRECTORY.  317 

certain  proceedings  to  be  done  in  a  certain  way  or  at  a  certain 
time,  and  a  strict  compliance  with  these  provisions  of  time  and 

may  be  enforced  as  a  duty,  though  the  language  is  permissive.  Hogan  v.  Devlin,  2 
Daly,  184.  If  a  public  body  is  clothed  with  the  right  to  do  a  thing  which  public 
interest  requires  to  be  done,  the  execution  of  the  power  may  be  enforced  as  a  duty, 
although  the  language  of  the  statute  is  simply  permissive.  Hines  v.  Lockport,  5 
Lans.  16,  21.  A  statute  "authorizing"  supervisors  to  change  the  _grade  of  a  certain 
street,  was  held  mandatory,  there  being  other  provisions  of  the  statute,  which 
negatived  any  intent  to  leave  the  matter  to  discretion.  People  v.  San  Francisco,  36 
Cal.  595. 

The  following  are  illustrations  of  statutes  and  provisions  which  have  been  held  • 
directory  :  a  provision  requiring  loan  commissioners  to  make  entries  of  their  doings 
in  a  book.  Wood  v.  Terry,  4  Lans.  80.  A  provision  that  the  judge  shall  caution 
the  jury,  etc.  Thompson  v.  State,  26  Ark.  823.  Certain  provisions  as  to  the  mode 
of  obtaining  jurors.  State  v.  Carney,  20  Iowa,  82.  Directions  to  public  officers  as  to 
holding  election.  Taylor  v.  Taylor,  10  Minn.  107.  And  as  to  time  of  closing  the 
polls.  Fry  v.  Booth,  19  Ohio,  N.  S.  25.  Requirement  for  filing  a  copy  of  a  map, 
where  a  contract  for  making  a  sewer  until  such  filing  is  not  prohibited.  In  re  N.  Y. 
P.  E.  Pub.  School,  47  N.  Y.  556.  A  statute  authorizing  supervisors  to  "  contract  " 
for  a  certain  map,  and  making  it  their  duty  to  do  so,  is  directory,  the  word  "  contract  " 
and  the  fact  that  size,  etc.,  are  not  specified  imply  discretion.  Bowers  v.  Sonoma 
Co.  32  Cal.  66.  Directory  acts  are  said  to  be  those  which  are  not  of  the  substance  of 
the  thing  provided  for.  McKune  v.  Weller,  11  Cal.  49.  For  an  example  of  affirmative 
language  construed  as  directory,  and  negative  as  prohibitory,  see  matter  of  Douglas, 
58  Barb.  174. 

Constitutional  Provisions. — The  following  special  constitutional  provisions  have 
been  held  mandatory  :  that  bills  shall  be  read  three  times,  and  that  votes  shall  be  by 
yeas  and  nays,  etc.  Supervisors  v.  Heenan,  2  Minn.  330  ;  Stechert  v.  East  Saginaw, 
22  Mich.  104.  That  "  the  Legislature  shall  establish  but  one  system  of  town  and 
county  government,"  which  shall  be  "  as  nearly  uniform  as  practicable."  State  v. 
Dousman,  28  Wise.  541.  That  no  county  containing  nine  hundred  square  miles  or  less, 
shall  be  divided  without  popular  vote.  State  v.  Merriman,  6  Wise.  14.  A  requirement 
of  "proportional"  taxation.  Oliver  v.  Washington  Mills,  11  Allen,  268.  The 
declaration  in  a  bill  of  rights,  that  "  all  property  subject  to  taxation  ought  to  be 
taxed  in  proportion  to  its  value ;  "  any  other  mode  is  prohibited.  Life  Association, 
&c.  v.  A?sessors,  49  Mo.  512.  The  provision  in  the  schedule  to  a  Constitution 
requiring  all  officers  to  qualify  within  fifteen  days  after  notice  of  appointment. 
State  v.  Johnson,  26  Ark.  281. 

The  following  special  constitutional  provisions  have  been  held  directory  :  a  require- 
ment that  judges  shall  give  a  written  opinion  on  each  question  arising  on  the  record. 
Willets  v.  Ridgway,  9  Ind.  367.  Requirement  of  an  oath  of  allegiance  by  the 
members  of  the  Legislature.  Hill  v.  Boyland,  40  Miss.  618 ;  Thomas  v.  Taylor,  6 
Nev.  651. 

The  two  preceding  cases  suggest  a  partial  test  to  determine  whether  provisions 
are  directory  or  mandatory  :  namely,  if  no  legal  sanction  is  provided,  by  which  a 
compliance  with  them  can  be  enforced,  they  are  plainly  directory.  Thus,  the 
provisions  last  mentioned  are  without  such  sanction,  for  it  could  not  be  pretended 
that  judgments  of  a  court  are  nullities,  because  the  judges  did  not  write  an  opinion 


318          STATUTES  WHEN  TREATED  AS  DIRECTORY. 

form  does  not  appear  essential  to  the  judicial  mind,  the  pro- 
ceedings are  held  valid,  though  the  command  of  the  statute  is 

O  '  O 

disregarded  or  disobeyed.  In  these  cases,  by  a  somewhat 
singular  use  of  language,  the  statute  is  said  to  be  directory. 
In  other  cases  the  statute  is  held  to  be  imperative  or  mandatory.* 

The  great  importance  of  this  branch  of  our  subject  is  at  once 
apparent ;  and  conceding  as  we  must  the  power,  it  is  equally 
apparent  that  the  questions  which  arise  under  this  head  are  not 
properly  those  of  construction  or  interpretation.  They  are 
questions  rather  of  application.  The  statute  is  sufficiently 
clear ;  the  only  point,  is  what  shall  be  the  consequence  of  a  dis- 
obedience of  its  directions.  . 

Neither  the  idea  that  statutory  provisions  may,  to  a  certain 
extent,  with  impunity  be  disregarded,  nor  the  phrase  that  in 
these  cases  they  are  treated  as  directory,  is  of  any  recent  origin. 
In  an  early  case  on  a  municipal  election,  the  mayor  was  to  be 
chosen  out  of  the  aldermen  who  were  "  annuatim  eligend;  "  but 
it  appeared  that  the  aldermen  present  at  the  mayor's  election 
had  been  in  office  several  years,  and  none  of  them  had  been  re- 
elected  within  a  year.  The  King's  Bench  held  the  election  void  ; 
but  upon  error  in  the  Exchequer  Chamber  and  two  solemn  ar- 
guments, the  judgment  was  reversed,  and  the  words  "  annuatim 
eligend "  were  held  to  be  directory  only ;  and  the  reversal  was 
affirmed  in  Parliament. f  So,  in  an  early  case  Lord  Mansfield 

*  Directions    given    by    a   sovereign    in  to  be  directory."     Entwhistle  v.  Dent,  1  Exch. 

regard  to  a  matter  over  which  his  power  is  811,  823,  per  Pollock,  C.  B. 
conceded,  would   according  to  the  ordinary          \  Foot    v.   Prowse,    Mayor    de    Truro, 

use  of  language,  be   held  to  involve,   as  its  Strange,  625,  11  George  I.     In  the  preface  of 

correlative,  obedience.     But,  as  in  the   cases  this  volume,  I  may  here  remark  in  passing, 

now  under  consideration,   obedience   is  dis-  Sir   John    Strange,  who  was  Master   of  the 

pensed  with  by  the  judiciary,   the   statute  Rolls,  complains  that  "  the  profession  of  the 

might  be  better  called  advisory.  The  phrase  law  is  already  overburthened  with  reports  ! " 
is  the  more  calculated  to  mislead,  as  it  is  In  the  case  of  the  Queen  v.  Corporation  of 

frequently  used  in  the  strict  and  proper  sense  Durham,  10  Mod.  146, 147,  the  K.  B.  said  that 

of  the  word.     So,  when  a  commercial  letter  though  a  town  clerk  be  annuatim  eligibilis,  he 

of  instructions   contained  the  phrase   "  you  remains  town  clerk  after  the  year,  and  until 

may  invest  the  proceeds  as  follows,  <fec.,  <fec.,"  another   was   chosen  ;    but   if  he   had    been 

the    Court  of  Exchequer    interpreted    these  eligibilis  pro  uno  anno  tanlum,  his  office  would 

words  as  conveying  a  peremptory  manadate,  have  expired  at  the  end  of  the  year, 
saying,  "  These  words  are  to  be  construed  to 

upon  all  the  questions  raised  by  the  record,  nor  that  all  acts  of  a  Legislature  are  void, 
"because  the  members  thereof  did  not  take  the  required  oath.  But  this  test  is  not, 
under  the  decisions,  universal,  because,  as  it  appears  from  many  of  the  foregoing 
cases,  as  well  as  from  those  gfven  in  the  text,  the  courts  have  frequently  held 
provisions  to  be  directory,  which  could  be  enforced  by  legal  sanctions.  Whether 
this  simple  test  should  not  have  been  originally  adopted,  it  is  now  too  late  to  inquire. 


STATUTES  WHEN  TREATED  AS   DIRECTORY.  319 

said,  "  There  is  a  known  distinction  between  circumstances  which 
are  of  the  essence  of  a  thing  required  to  be  done  by  an  act  of 
Parliament,  and  clauses  merely  directory.  The  precise  time  in 
many  cases  is  not  of  the  essence." ' 

From  the  English  jurisprudence  the  doctrine  was  adopted 
in  our  own ;  and  of  late  years,  owing  partly  to  the  immense 
multiplicity  of  statutes,  and  the  haste  and  carelessness  with 
which  they  are  drawn,  partly  to  the  want  of  education  and  sys- 
tem on  the  part  of  subordinate  officers  clothed  with  important 
trusts,  this  practice  of  treating  statutes  has  been  carried  to  a 
very  great  extent.  In  order  to  give  an  accurate  idea  of  the 
state  of  the  law  in  this  respect,  our  attention  will  now  be  given 
to  some  of  the  prominent  decisions  made  in  both  countries. 

In  some  cases  it  has  been  intimated  that  the  character  and 
construction  of  the  statute  would  be  determined  by  the  use  of 
affirmative  or  negative  words.  That  is  to  say,  that  a  mere 
affirmative  command  would  be  held  to  be  directory ;  but  that 
if  the  statute  declared  the  act  should  be  done  in  no  other  way, 
it  would  be  held  to  be  imperative  or  mandatory. 

Again,  the  decision  has  turned  on  the  mere  phraseology  of 
the  act.  So,  where  a  marriage  act  declared  that  "  the  consent 
of  the  father,  etc.,  is  hereby  required  for  the  marriage "  of  a 
child  under  age,  the  words  were  held  directory  only,  Lord  Ten- 
terden  saying,  "  The  language  of  this  section  is  merely  to  require 
consent ;  it  does  not  proceed  to  make  the  marriage  void  if  sol- 
emnized without  consent."f 

Again,  it  may  turn  on  whether  the  direction  is  inserted  in 
the  shape  of  a  proviso,  and  upon  the  mode  in  which  the  proviso 
is  framed.  Where  a  statute  declared  that  guardians  of  the 
poor  should  have  power  to  bind  as  apprentices,  "provided  that 
the  children  should  not  be  bound  for  a  longer  term  than  "  till  a 
certain  age, — an  indenture  binding  a  child  for  a  longer  term 
than  that  allowed  by  the  act,  was  held  not  absolutely  void,  but 
merely  voidable,  on  the  ground,  that  tjas  proviso  "  was  only  as 
mild  a  form  of  directing,  and  only  directing,  as  could  be ; "  that 
the  act  did  not  declare  the  binding  null  and  void,  nor  contain 

*  Rex  v.  Loxdale,  1  Burr.  447.     See,  also,  Alabama,  619  ;    Rex  v.  Justices  of  Leicester, 

as  to  the  different  effect  of  affirmative  or  nega-  7  B.  <fe  C.  6 ;  s.  c.  9  D.  &  R.  772. 

tive  -words  as  to  making  a  statute  imperative  f  Rex  Ar.  Inhabts.  of  Birmingham,  8  B.  & 

or  directory,  Savage  et  al.  v.  Walsh  et  al.  26  C.  29,  35. 


320  STATUTES    WHEN   TREATED   AS   DIRECTORY. 

any  penalty,  nor  any  words  to  make  it  illegal ;  nor  was  public 
policy  in  any  way  concerned  in  setting  the  bond  aside.*  By  a 
paving  act,  commissioners  were  empowered  to  enter  into  con- 
tracts for  the  work,  provided  that  no  contract  should  be  made 
for  a  longer  term  than  three  years ;  and  the  act  then  went  on 
to  declare  that  ten  days'  notice  of  proposals  should  be  given, 
that  the  contracts  should  specify  the  work,  the  price,  and  the 
time  of  completion,  and  should  be  signed  by  at  least  three  of 
the  commissioners,  and  that  copies  should  be  kept.  It  was  held 
that  the  proviso  as  to  the  term  of  the  contract  was  imperative, 
but  that  all  the  other  clauses  were  merely  directory  (Tindal,  C. 
J.,  saying,  "The  act  says  that  the  contracts  shall  be  signed 
by  the  commissioner,  &c. ;  it  does  not  say  that  they  shall  be 
void  unless  so  signed  "),  and  that  a  contract  was  good  without 
them.  Here  it  is  obvious  that  provisions  inserted  by  the  Legis- 
lature for  the  protection  of  tax-payers,  were  nullified  by  a  judi- 
cial decision.f 

In  New  York,  an  effort  has  been  made  to  declare  a  rule  for 
cases  of  this  class.  Where  a  statute  authorized  the  command- 
ing officer  of  each  brigade  of  infantry,  on  or  before  the  first  day 
of  June  to  appoint  a  brigade  court  martial,  in  an  action  for  fines 
imposed  by  a  court  martial  it  appeared  that  the  court  was  not 
appointed  till  July,  and  it  was  objected  that  the  fines  were  ille- 
gally imposed  ;  but  the  statute  was  held  to  be  directory  merely ; 
and  it  was  said,  "  There  is  nothing  in  the  nature  of  the  power 
showing  that  it  might  not  be  as  effectually  exercised  after  the 
first  of  June  as  before,  and  the  act  giving  it  contains  no  prohi- 
bition to  exercise  it  after  that  period."  It  was  considered  a 
mere  direction,  and  not  a  limitation  ;  and  the  court  proceeded 
to  add,  "  The  general  rule  is,  that  where  a  statute  specifies  the 
time  within  which  a  public  officer  is  to  perform  an  official  act 
regarding  the  rights  and  duties  of  others,  it  will  be  considered 
as  directory  merely,  unless  the  nature  of  the  act  to  be  per- 

*  The  King  v.  Inhabts.  of  St.  Gregory,  2  no  copies.    The  embarrassment  in  these  cases, 

Ad.  &  Ell.  99.     See  Rex  v.  Inhabts.  of  Hips-  as  I  shall  have  occasion  again  to  observe,  ap- 

well,  8  B.  &  C.  466.  pears  chiefly  to  arise  from  the  statute  either 

•f  Cole  v.  Green,  6   Man.    &  G.  872,  890.  connecting  together   provisions  of  very  une- 

This  seems  clear  as  to  the  clauses  requiring  qual  importance,  or  from  its  omitting  to  pre- 

notice  of   the  proposals,   and   detailed  con-  scribe  the  consequenses  of  a  violation  of  its 

tracts ;  and  yet  it  was  difficult  to  hold  that  the  directions, 
contracts  should  be  violated  if  the  clerks  kept 


STATUTES   WHEN   TREATED   AS  DIRECTORY.  321 

formed,  or  the  language  used  by  the  Legislature,  shows  that  the 
designation  of  the  time  was  intended  as  a  limitation  of  the 

O 

power  of  the  officer."  * 

I A  Massachusetts,  where  a  statute  required  the  assessors  to 
assess  a  tax  within,  thirty  days  after  the  vote  of  the-  tax  being 
certified  to  them,  it  was  held  that  the  naming  the  time  for  the 
assessment  was  to  be  considered  as  directory  to  the  assessors, 
and  not  as  a  limitation  of  their  authority,  f  So  in  New  York, 
where  a  school  tax  was  voted  at  a  meeting  of  which  no  notice 
was  given  as  required  by  statute,  and  afterwards  levied,  the 
act  was  held  to  be  directory  merely,  and  •  the  tax  to  be  well 
laid.  J  A  statute  requiring  a  tax  to  be  assessed,  and  the  tax- 
list  therefor  to  be  made  out  by  the  trustees,  and  a  proper  war- 
rant attached  thereto  within  thirty  days  after  the  district  meet- 
ing in  which  the  tax  shall  have  been  voted,  is  merely  directory 
as  to  time.  It  being  for  the  benefit  of  the  public,  those  acts 
may  be  done  after  the  time  specified  in  the  statute  has  elapsed.  | 
It  may  perhaps  be  doubted  whether  these  cases  do  not  conflict 
with  the  wholesome  strictness  required,  as  we  have  seen,  in 
summary  administrative  proceedings.  So  again,  where  a  city 
ordinance  required  a  superintendent  of  streets  to  keep  an  ac- 
count of  the  expenses  done  under  an  assessment,  and  to  report 
the  same  in  ten  days,  the  provision  was  held  to  be  merely 
directory,  and  not  a  condition  precedent  to  the  making  of  a 
valid  assessment. *[[ 

The  Revised  Statutes  of  New  York  **  provide  that  every 
person  elected  to  the  office  of  sheriff  shall  within  twenty  days 
after  he  shall  receive  notice  of  his  election,  execute  a  bond,  <fec., 
to  the  people  of  the  State.  This  provision  also  has  been  held 
to  be  a  direction,  and  not  a  limitation. ff  In  another  recent  case 
in  the  same  State,  it  was  said  that  statutory  requisitions  are 

*  The  People   v.  Allen,  6   Wendell,  487,  tory  provisions  as  to  time  and  notice  of  hold- 

488,  per  Marcy,  J.     The  act  regulating  sales  ing,  <fec.,  have  not  been  complied  with, 
of  real  property  on  an  execution,  makes  it  the  f  Pond  v  .Ve^us  et  al.  3  Mass.  230  ;  Wil- 

duty  of  sheriffs  to  file  a  certificate  of  sale  in  liams  v.  School  District,  21  Pick.  75. 
the  clerk's   office  in  ten  days  after  the   sale  \  Marchant  v.  Langworthy,  6  Hill,   646  ; 

takes  place ;  but  this  omission  does  not  affect  3  Denio,  6'26. 

the  validity   of  the   sale.      Jackson   ex  dem.  \\  Gale  v.  Mead,  2  Denio,  160 ;  Thomas  v. 

Hooker  v.  Young,  5   Cowen,  269.     See  The  Clapp,  20  Barb.  165. 

People  v.  Kunkle,  9  J.  R.  147,  and  The  People          Tf  City  of  Lowell  v.  Hadley,  8  Met.  180. 
v.  Peck,  11  Wend.  604,  for  cases  where  church  **  1  R.  S.  378,  §  67. 

elections  have  been  held  good  though   statu-          f  f  The  People  v.  Holley,  12  Wend.  481. 
21 


322          STATUTES  WHEN  TREATED  AS  DIRECTORY. 

deemed  directory  only  when  they  relate  to  some  immaterial 
matter,  where  a  compliance  is  a  matter  of  convenience  rather 
than  of  substance.* 

Indeed,  the  rule  has  been  carried  so  far  as  to  hold,  where  a 
statute  directed  the  vote  of  the  common  council  of  the  city  of 
New  York  to  be  taken  by  ayes  and  nays,  that  this  provision  is 
merely  directory,  f  And,  again,  it  has  been  decided  that  the 
provision  of  a  statute  requiring  inspectors  of  corporate  elections 
to  take  an  oath,  is  only  directory. £  The  rule  has  also  been  ap- 
plied to  popular  elections;  and  an  election  has  been  held  valid, 
though  the  inspectors  were  sworn  not  on  the  Bible  but  on 
some  other  book,  though  they  kept  open  the  polls  after  the 
time  fixed  by  law,  and  committed  other  minor  irregularities,— 
on  the  ground,  that  in  all  these  respects  the  enactments  of  the 
statute  were  directory  ;  that  provision  was  made  for  the  punish- 
ment of  the  officers  for  wilful  or  corrupt  conduct ;  that  no  ac- 
tual evidence  of  fraud  was  adduced,  nor  any  proof  that  the 
irregularity  complained  of  had  produced  an  improper  result.  | 

I  think  it  may  well  be  doubted  whether  in  the  desire  to 
sustain  proceedings  against  which  no  bad  faith  has  been  al- 
eged,  a  proper  regard  for  form  and  regularity  has  not  been 
lost  sight  of.  It  is  extremely  difficult  in  these  cases  to  prove 
actual  fraud ;  the  very  object  of  forms  of  proceeding  is  to  secure 
regularity  and  fair  dealing,  and  the  recognition  of  the  doctrine 
that  explicit  provisions  of  statutes  can  be  disregarded  with  en- 
tire impunity  as  to  the  result  of  the  particular  proceeding,  is 
likely  to  lead  to  unbounded  negligence  and  indifference  on  the 
part  of  public  officers,  who  have,  as  a  general  rule,  little  to  fear 
from  criminal  proceedings  directed  against  themselves  per- 
sonally. 

The  general  principle,  that  statutory  provisions  may  in  cer- 
tain cases  be  treated  as  purely  directory,  has  been  recognized 
in  all  the  States.  In  regard  to  capital  trials  for  murder  in 
Michigan,  a  statute  requiring  a  circuit  judge  to  assign  a  day  for 
the  trial,  has  been  held  clearly  directory,  so  far  as  time  is  con- 

*  The  People  v.  Schermerhorn,  19  Barb.  \  In  the  Matter  of  the  Mohawk  and  Hud- 

540.  son  R.  R.  Co.  19  Wend.  143. 

f  Striker  v.  Kelly,  7  Hill,  9.  J   People  v.  Cook,  14  Barbour,  259 ;  s.  c. 

4  Seld.  88,  89,  93. 


STATUTES   WHEN"   TREATED    AS    DIRECTORY.  323 

cerned.*  So  in  Indiana,  an  act  authorizing  the  governor  of  the 
State  to  appoint  arbitrators,  in  regard  to  a  railroad,  "  two  of 
whom  shall  be  men  of  legal  attainments,"  was  held  from  its 
vagueness  to  be  merely  directory,  and  that  his  action  in  the 
premises  could  not  be  reviewed,  although  no  two  of  the  arbi- 
trators appointed  by  him  had  the  prescribed  qualifications^ 
So,  too,  in  Louisiana,  it  has  been  held  that  a  provision  in  an 
act  providing  for  the  subscription  by  municipal  corporations, 
to  the  stock  of  companies  undertaking  works  of  internal  im- 
provement, requiring  that  the  commissioners  of  election  should 
be  furnished  with  a  properly  certified  list  of  the  authorized 
voters,  is  directory  merely.^  In  Connecticut,  it  has  been  said 
that,  when  a  duty  is  required  by  statute  to  be  performed  on  a 
certain  day,  and  the  object  contemplated  by  the  Legislature 
cannot  otherwise  be  carried  into  eifect,  the  time  prescribed 
must  be  considered  imperative ;  but  if  there  is  nothing  indi- 
cating that  the  exact  time  is  essential,  it  is  to  be  considered  as 

O  ' 

directory.  So,  where  a  city  charter  required  that  a  certain 
number  of  jurors  should  be  chosen  on  the  first  Monday  of  July, 
and  they  were  not  chosen  till  the  first  of  August,  it  was  said 
that  the  provision  was  directory,  and  the  jury  was  held  to  be 
legal.  I  In  Alabama,  a  clause  in  an  act  for  the  final  settlement 
of  the  affairs  of  a  bank,  requiring  the  trustees  to  sell  the  re- 
maining property,  "  within  thirty  days  from  the  first  Monday 
in  November,"  has  been  held  not  to  be  mandatory,  but  direct- 
ory merely ;  and  that  a  sale  made  after  the  expiration  of  the 
time  specified  was  good,  on  the  ground  that  the  act  contained 
merely  affirmative,  and  not  negative  words,  ^f 

I  may  here  notice  that  this  same  principle  has  been  applied 

*  The  People  v.  John  Doe,  1  Michigan,  twelve  months  to  compel  the  surveyor  to  sur- 

452,  453.  TeJ.  an(i  obtained ;  but  the  survey  was  not 

f  The  State  v.  McGinley,  4  Indiana  Re-  completed  within  the  twelve  months.     It  was 

ports,  p.  7.  held,  nevertheless,  that  the  survey  was  valid, 

\  City  of  New  Orleans  v.  St.  Rowes,  9  La.  on  the  ground  that  it  was  not  intended  to 

Ann.  R.  573.      Vide  the  dissenting  opinion  of  compel  a  party  to  do  an  act  wholly  out  of  his 

Buchanan,  J.  power.     Edwards  v.  James,  13  Texas,  52. 

|  Colt  v.  Eves,  12  Conn.  243.  ^  Savage  et  al.  v.   Walsh  et  al.  26  Ala. 

A  statute  in  Texas  provided  that  certain  620.  For  other  cases  see  Ex  parte  Heath  and 
lands  theretofore  located,  should  be  surveyed  others,  3  Hill,  42  ;  People  v.  Holley,  12  Wend, 
within  twelve  months,  or  the  location  should  481 ;  Jackson  v.  Young,  5  Cowen,  26&;  Hoi- 
be  null  and  void.  The  locator  applied  to  the  land  et  al.  v.  Osgood,  8  Verm.  276,  and  Cor- 
surveyor  to  survey,  and  the  surveyor  refused,  lisa  v.  Corliss,  Ibid.  373. 
A  mandamus  was  applied  for  within  the 


324  STATUTES  WHEN    TREATED  AS  DIRECTORY. 

to  the  construction  of  Constitutions.  The  Constitution  of  New 
York  provides,  in  regard  to  all  laws,  "  that  the  question  upon 
the  final  passage  shall  be  taken  immediately  upon  the  last  read- 
ing, and  the  yeas  and  nays  entered  in  the  journal."  (Cons.  art. 
iii,  §  15.)  It  has  been  held,  in  regard  to  this  provision,  with 
what,  I  say  it  in  all  deference,  appears  to  me  an  extreme  lax- 
ness,  that  it  is  merely  directory,  and  that  the  disregard  of  it 
would  have  no  effect  upon  the  law.* 

It  seems  to  me  difficult  to  deny  that  the  practice  of  sanc- 
tioning the  evasion  or  disregard  of  statutes,  which  we  have  had 
occasion  to  notice  in  the  cases  thus  examined,  has  been  earned 
beyond  the  line  of  sound  discretion.     This  idea  has  been  re- 
peatedly expressed.     "  I  am  not  very  well  satisfied  with  the 
summary  mode  of  getting  rid  of  a  statutory  provision,  by  call- 
ing it  directory,"  says  Hubbard,  J.,  in  the  Supreme  Court  of 
Vermont.     "  If  one  positive  requirement   and   provision   of  a 
statute  may  be  avoided  in  that  way,  I  see  no  reason  why  an- 
other may  not."f     But  it  is  not  to  be  denied  that  the  practical 
inconveniences  likely  to  result  from  insisting  with  literal  sever- 
ity  on  strict  compliance  with  all  the   minute   details   which 
modern  statutes  contain,  create   a  pressure  on    the   judiciary 
very  difficult  to  be  resisted  by  sagacious  and  practical  men  who 
desire  to  free  the  law  from  the  reproach  of  harshness  or  absurd- 
ity.    If  it  should  be  thought,  on  a  review  of  these  cases,  that 
the  judiciary  have,  in  regard  to  the  construction  of  statutes  as 
directory,  really  infringed  on  the  province  of  the  Legislature, 
the  only  practical  remedy  for  it  appears  to  be  a  more  careful 
preparation  of  the  statutes,  and  an  habitual  insertion  of  the 
precise  consequence  which  the  lawmaker  intends  to  follow  from 
the  disregard  of  his  directions.      "Perhaps,"  says  Lord  Den- 
man,  in  a  case  of  this  kind,  "  this  discussion  may  incline  the 
Legislature  to  say,  on  future  occasions,  in  what  respect  they 
mean  any  particular  provisions  to  be  void  which  they  declare 
to  be  so  in  general  terms,  and  what  consequences  they  intend 
should  result  from  this  invalidity.     In  the  absence  of  this,  we 
have  great  difficulty  in  all  such  cases."  J 

*  The  People  against  the  Supervisors  of          f  Briggs  v.  Georgia,  15  Verm.  61,  72. 
Chenango,  4  Seld.  317.     See  also  Lehman  v.  |  Reg.  v.  Inhabs.  of  Fordham,  1 1  A.  &  E.  88. 

McBride,  15  Ohio,  N.  S.  573.  "When  a  statute  prescribes  how  it  shall  be 


GENERAL  RULES.  325 

We  approach  the  end  of  a  path  which  the  careful  reader 
must  have  long  since  perceived  to  be  beset  with  difficulties, 
contradictions,  and  perplexities.  In  the  cases  that  we  have  ex- 
amined in  this  chapter,  we  find  that  sometimes  laws  are  con- 
strued strictly,  and  sometimes  liberally, — sometimes  liberally  for 
one  purpose,  or  in  one  aspect,  and  strictly  in  another, — some- 
times exceptions  are  inserted  to  obviate  suggestions  of  hardship 
or  inconvenience,  and  sometimes  the  courts  refuse  to  make  such 
qualifications, — sometimes  statutes  are  interpreted  with  strict 
and  literal  severity,  and  sometimes  obedience  to  their  mandates 
is  declared  to  be  a  matter  of  entire  indifference.  It  is  obvious 
that  in  this  state  of  things  it  is  impossible  to  arrive  at  any 
rules  of  interpretation  other  than  those  which  are  derived  from 
a  classification  such  as  we  have  attempted  to  make. 

It  is  equally  obvious,  however,  that  serious  evils  are  sure  to~ 
result  from  a  latitude  of  construction  so  considerable  as  we  find 
to  exist ;  and  I,  therefore,  attempt,  with  great  deference  for  the 
able  and  learned  magistrates  who  are  practically  engaged  in 
the  administration  of  justice,  to  frame  the  following  rules  as 
those  which  ought  to  govern  in  this  department  of  our  science. 

The  intention  of  the  Legislature  should  control  absolutely 
the  action  of  the  judiciary;  where  that  intention  is  clearly 
ascertained,  the  courts  have  no  other  duty  to  perform  than  to 
execute  the  legislative  /will,  without  any  regard  to  their  own 
views  as  to  the  wisdom  or  justice  of  the  particular  enact- 
ment.* (a) 

The  means  of  ascertaining  that  intention  are  to  be  found  in 
the  statute  itself,  taken  as  a  whole  and  with  all  its  parts, — in 
statutes  on  the  same  siibject,  antecedent  jurisprudence  and 
legislation,  contemporaneous  and  more  recent  exposition,  judi- 

construed,  the  courts  are  bound  by  such  pro-  is  left  for  construction ;  "  "  resort  is  not  per- 

vision.     Smith  v.  State,  28  Ind.  321.  mitted  to   extrinsic    facts,  to  ascertain  the 

*  No  principle  is  more  firmly  established,  meaning  of  a  statute  otherwise  clear." — Per 

or  rests  on  more  secure  foundations,  than  the  Goldthwaite,  J.,  in  Bartlett  v.  Morris,  9  Por- 

rule  which  declares,  when  a  law  is  plain  and  ter,  Ala.  268,  269.     See  this  case,  also,  with 

unambiguous,    whether  it  be   expressed  in  reference   to  the  point   that   the   title  of    a 

general  or  limited  terms,  that  the  Legislature  statute   may  explain  what  is   doubtful,  but 

shall  be  intended  to   mean  what  they  have  cannot  control  what  is  contained  in  the  body 

plainly  expressed,  and  consequently  no  room  of  the  act. 

(a)  As  to  where  a  discretion  is  vested  in  officers  not  to  be  reviewed  by  the  court, 
see  Hargreaves  v.  Smith,  3  B.  &  S.  611. 


326  GENERAL    RULES. 

cial  construction,  and  usage  ;  and  to  the  use  of  these  means, 
and  these  alone,  the  judiciary  is  confined.  No  other  extrinsic 
facts  are  in  any  way  to  be  taken  into  consideration. 

It  is  not  until  these  means  fail,  and  until  the  attempt  to 
ascertain  the  legislative  intent  is  hopeless,  that  the  judiciary 
can  with  propriety  assume  any  power  of  construing  a  statute, 
strictly  or  liberally,  with  reference  either  to  the  particular 
character  of  the  statute,  or  to  their  own  ideas  of  policy  or 
equity.  Where  the  meaning  of  the  statute,  as  it  stands,  is 
clear,  they  have  no  power  to  insert  qualifications,  eograffc  excep- 
tions, or  make  modifications,  under  the  idea  of  providing  for 
cases  in  regard  to  which  the  Legislature  has  omitted  any  specific 
provisions. 

In  cases  where  the  intent  of  the  Legislature  is  ambiguous, 
and  the  effort  to  arrive  at  it  is  hopeless,  and  in  these  cases  only, 
does  the  power  of  construing  a  statute  strictly  or  liberally 
exist;  and  in  regard  to  its  exercise,  as  of  discretionary  power 
generally,  no  other  rule  can  be  laid  down  than  that  it  must  be 
exerted  under  the  guidance  of  learning,  fidelity,  and  practical 
s  agacity. 

In  regard  to  the  cases  where  statutes  are  held  to  be  directory, 
the  greatest  difficulty  exists  ;  and  in  these  there  appears  no 
mode  of  obviating  it  until  legislative  enactments  shall  be 

o  o 

framed  so  as  to  specify  with  precision  the  consequences  intended 
io  follow  upon  a  disregard  of  their  provisions. 

To  the  practiced  mind  these  rules  may  at  first  sight  appear 
useless  or  trivial  ;  but  perhaps  they  will  not  be  so  considered 
on  a  careful  consideration  of  the  labyrinth  of  cases  in  which 
we  have  been  wandering,  and  on  observing  the  difficulty  of 
obtaining  or  of  giving  a  clue  to  its  dark  and  tortuous  passages. 
That  difficulty  appears  to  me  mainly  to  arise  from  the  abuse  of 
the  power  of  strict  and  liberal  construction,  to  which  our  at- 
tention cannot  be  too  often  called. 

The  idea  that  an  act  may  be  strictly  or  liberally  construed, 
without  reference  to  the  legislative  intent,  according  as  it  is 
viewed  either  as  a  penal  or  a  remedial  statute,  either  as  in 
derogation  of  the  common  law  or  a  beneficial  innovation,  —  is, 
in  its  very  nature,  delusive  and  fallacious.  Every  statute  may 


INTENTION  OF  THE   LEGISLATURE.  327 

be  said  to  have  two  aspects ;  if  it  be  severe  in  regard  to  an 
individual,  it  is  beneficial  to  the  community ;  if  it  punishes 
crime,  it  also  prevents  fraud ;  if  it  infringes  on  some  venerable 
rule  of  the  ancient  law,  it  also  introduces  more  simple,  rapid, 
and  less  expensive  modes  of  procedure ; — so  that  every  act  is 
capable,  if  this  doctrine  be  admitted,  of  being  construed  in  two 
ways  dianfetrically  opposed  to  each  other,  according  to  the 
temper  of  the  magistrate  to  whom  the  task  is  confided. 

Again,  the  same  act  will  be  differently  viewed  under  differ- 
ent circumstances.  The  acts  diminishing  the  severity  of 
imprisonment  for  debt,  will  be  at  one  time  looked  upon  as  loose 
and  profligate  enactments,  impairing  the  rights  of  creditors ;  and 
at  another  as  laws  in  favor  of  freedom  and  humanity.  The 
usury  laws  will  be  at  one  period  regarded  as  salutary  restraints 
on  the  rapacity  of  capitalists,  and  at  another  as  absurd  restric- 
tions on  the  commercial  dealings  of  mankind ;  so  that,  if  con- 
strued according  to  the  different  lights  in  which  they  are 
viewed,  the  same  laws  will  be  differently  interpreted  at  differ- 
ent times,  and  even  in  different  places  at  the,  same  time. 

The  inconsistencies  and  discrepancies,  as  they  now  exist,  do, 
in  truth,  too  often  arise  from  a  desire,  often  an  unconscious  one, 
to  substitute  the  judicial  for  the  legislative  will ;  and  they  can 
only  be  corrected  by  adhering  to  the  cardinal  rule  that  the 
judicial  functions  are  always  best  discharged  by  an  honest  and 
earnest  desire  to  ascertain  and  effect  the  intention  of  the  law- 
making  body.* 


The  Intention  of  the  Legislature. — We  have  had  repeated  occasion  to  make 
use  of  this  term  in  the  course  of  the  last  two  chapters,  and  it  may  not  be 
amiss  here  to  analyze  the  phrase  more  closely  than  has  been  done  in  the  text. 
Where,  then,  in  what  minds,  can  the  intent  of  a  given  legislative  act  be  found, 
and  how  can  its  existence  be  proved  1  The  question  is  asked  as  an  abstract 
one,  and  without  reference  to  any  technical  rule  of  any  kind. 

In  regard  to  the  general  purport,  or  object,  or  intention  of  an  act,  no  difficulty 
presents  itself.  If  an  act  be  passed  to  make  a  railroad,  or  to  raise  troops,  no  doubt 
can  arise  that  every  member  of  the  majority  which  votes  for  the  bill,  concurs 
in  the  intention  to  accomplish  the  general  object  of  the  laws,  viz.,  to  make 

*  See  the  opinion  of  Chief  Justice  Ed-  bond, — for  a  clear  and  forcible  statement  of 
wards,  in  Hardin  v.  Owings,  1  Bibb,  215,  the  evils  resulting  from  the  loose  notions  of 
Kentucky, — a  case  on  the  form  of  an  appeal  construction  which  have  heretofore  prevailed. 


328  INTENTION  OF  THE   LEGISLATURE. 

the  road,  or  to  raise  the  levies.  But  in  regard  to  the  particular  meaning  of 
particular  phrases  or  clauses — those  out  of  which  all  the  difficulties  of  con- 
struction grow — the  case  is  very  different.  Take,  for  instance,  the  statute  for- 
bidding sheriffs  to  buy  at  sales  on  executions  issued  to  them  (ante,  p.  260), 
which  has  been  construed  to  mean,  "excepting  in  cases  where  sheriffs  are 
plaintiffs," — or  the  statutes  authorizing  all  persons  to  make  wills  (ante,  p.  259), 
and  which  has  been  construed  not  to  include  married  women, — or  any  still 
nicer  cases.  Did  the  Legislature  in  these  cases  mean  to  exclude  skeriff-plaintiffs, 
or  to  include  married  women  ?  What  was  the  legislative  intent  ? 

In  seeking  for  an  answer,  many  things  are  to  be  considered.  In  the  first 
place,  the  intention  is  to  be  found  in  the  acts  of  the  majority,  and  the  objects  or 
purposes  of  those  voting  against  the  bill  are  to  be  left  out  of  view.  Of  those 
who  voted  for  the  bills,  how  many  considered  the  precise  question, — as  that  a 
sheriff  might  be  a  plaintiff?  How  many  knew  anything  of  the  rule  of  the 
common  law,  that  married  women  are  incompetent  to  make  wills  ?  How  is  it 
to  be  known  in  the  case  of  the  sheriffs'  statute,  that  some  one  or  more  of  the 
majority,  even  if  they  considered  that  a  sheriff  might  be  a  plaintiff,  did  not 
intend,  having  this  in  their  minds,  to  make  an  arbitrary  and  peremptory  rule, 
like  the  statute  of  frauds,  to  prevenf  collusion  or  perjury.  Again,  if  the  clause 
be  inserted  by  amendment,  is  the  majority  who  voted  for  the  amendment,  the 
same  as  the  majority  who  voted  for  the  bill  ?  Amendments  are  very  frequently 
voted  for  by  members  hostile  to  a  bill,  for  the  purpose  of  defeating  it,  and  yet 
the  bill  passes.  Again,  a  committee  reports  a  bill  with  one  object,  and  it  is 
completely  or  partially  altered  by  amendments  in  its  passage  through  the 
legislative  body.  These  considerations,  moreover,  all  apply  to  two  bodies,  there- 
by doubling  the  difficulty  of  arriving  at  the  real  intention  of  the  law-making  power. 

Illustrations  of  this  kind  might  be  extended  almost  indefinitely.  They 
appear  to  me  to  be  quite  sufficient  to  show  that  even  if  the  utmost  latitude 
of  proof  was  allowed,  if  reports  and  journals  were  consulted,  if  even  the  mem- 
bers themselves  were  put  on  the  stand,  it  would  be  utterly  impossible  in  the 
great  majority  of  cases  to  prove  what  the  intent  of  the  legislative  body  actually 
was  in  framing  or  inserting  any  given  particular  clause  or  provision. 

These  considerations  are  not  without  practical  weight.  They  go  to  show 
the  only  safe  rule  to  be,  that  the  legislative  intent  must  be  taken  as  expressed 
by  the  words  which  the  Legislature  has  used,  that  all  attempts  by  any  kind  of 
evidence  to  get  at  a  legislative  meaning  different  from  that  embodied  in  the 
words  of  the  enactment,  would  from  the  nature  of  things  prove  illusory  and 
vain ;  the  interpretation  in  these  cases  is  necessarily  conjecture,  tending  to 
assume  the  shape  of  mere  arbitrary  discretion  ;  and  that  construction  should  be 
strictly  confined  to  cases  of  ambiguity  or  contradiction.  "I  hold  that  in 
respect  to  the  intention  of  the  Legislature,  where  the  language  of  the  act  is 
explicit,  the  courts  are  bound  to  seek  for  it  in  the  words  of  the  act,  and  are  not 
(  at  liberty  to  suppose  that  they  intended  anything  different  from  what  their 
language  imports."  Mr.  Senator  Porter,  in  The  Supervisors  of  Niagara  v.  The 
"People,  7  Hill,  511. 


CHAPTER     VIII. 

THE    CONSTRUCTION   AND  APPLICATION  OF    STATUTES  IN  PARTICU- 
LAR CASES. 

Statutes  Delegating  Public  Authority. — Revenue  Laws. — Penal  Laws. — Laws  as 
Affecting  the  Rights  of  the  Government. — Effects  of  Statutes  on  Contracts  in 
Violation  of  them. — Cumulative  Remedies  and  Penalties. — Retroactive  Effect 
of  Laws. — "Waiver. — Rule  that  the  last  Statute  in  point  of  time  Prevails. — Com- 
putation of  Time  in  Statutes. — Subject-matter. — General  "Words. — Misdescrip- 
tion  and  Surplusage. — Remoteness  of  Effect. — Statutes  against  Wagers. — Cor- 
porations.— The  Interpretation  and  Proof  of  Foreign  Laws. — Revision  of 
Statutes. — State  Laws,  how  Construed  in  the  Courts  of  the  United  States. — In- 
terpretation of  Particular  Words. — Miscellaneous  Cases. — Grants  of  Patents. 

HAVING  in  the  previous  chapters  considered  the  general 
principles  of  interpretation  applicable  to  statutory  law,  I  now 
proceed,  for  the  more  complete  understanding  of  the  subject,  to 
examine  the  construction  and  application  of  statutes  in  particu- 
lar cases.  This  will  lead  me,  perhaps  at  the  risk  of  a  repetition 
of  matters  already  somewhat  discussed  under  the  head  of  the 
incidents  and  attributes  of  statutes,  to  consider  certain  classes 
of  enactments,  the  application  of  certain  general  rules  or  maxims 
of  our  law  to  this  special  branch  of  it,  to  speak  of  certain  arbi- 
trary rules  of  interpretation  which  have  been  adopted,  and 
finally  to  examine  the  sense  in  which  particular  words  are  re- 
ceived. 

Statutes  Delegating  Authority  to  Public  Officers. — We  have 
already*  called  attention  to  the  subject  of  public  officers  created 
by  statute ;  and  although  the  general  disposition  of  the  judiciary 
seems  to  be  to  treat  such  agents  with  liberal  confidence,  so  long 
as  they  appear  to  be  acting  in  good  faitli,  with  due  discretion, 
and  within  the  limits  of  their  conceded  powers,  and  although 
in  the  exercise  of  mere  discretionary  authority,  the  courts  are 
unwilling  to  interfere, — yet  where  public  officers  overstep  the 

*  Ante,  pp.  81,  82. 


330  STATUTES   DELEGATING  PUBLIC   AUTHORITY. 

bounds  of  their  authority,  and  the  courts  are  appealed  to  as 
matter  of  strict  right,  the  actions  of  these  agents  are  vigilantly 
watched,  and  their  infringements  of  private  right  unhesitatingly 
repressed.  This  doctrine  we  have  already  partially  considered 
under  the  heads  of  summary  judicial  and  administrative  pro- 
ceedings.* 

So  where  a  statute  of  the  State  of  Illinois  authorized  certain 
commissioners  to  borrow  money  and  issue  bonds,  but  the  stock 
or  bonds  of  the  State  were  in  no  case  to  be  sold  for  less  than  their 
par  value, — it  appearing  that  the  securities  had  been  sold  for  less 
than  par,  the  sale  was  held  to  be  void,  and  an  injunction  against 
the  purchaser  ordered.f  So  in  Michigan,  where  a  statute  author- 
ized the  agent  of  the  State  prison  to  let  out  convicts,  and  required 
him  to  give  notice  in  a  public  newspaper  for  sealed  proposals 
for  letting  the  convicts,  it  was  held  that  the  statute  must  be 
strictly  pursued ;  and  a  contract  made  without  the  statutory 
notice  was  adjudged  void.J  So  again,  where  county  com- 
missioners were  authorized  to  loan  money  on  mortgage, 
and  upon  non-payment  the  commissioners  were  directed  by 
statute  to  advertise  for  sale  in  three  places,  it  was  held  that  a 
compliance  with  the  statute  was  indispensable ;  and  the  direc- 
tions of  the  act  having  been  neglected  the  sale  was  held  void.  | 
In  cases  of  authority  of  this  kind,  where  personal  trust  or 
confidence  is  reposed  in  the  agent — where  his  discretion  is  to  be 
exercised — the  authority  is  purely  personal,  and  cannot  be  dele- 
gated. Thus,  where  authority  was  conferred  upon  canal  com- 
missioners to  enter  upon  lands,  <fec.,  it  was  held  that  the  power 
could  only  be  exercised  by  them  in  person,  or  by  their  express 
direction,  and  that  an  engineer,  or  other  subagent  could  not 
exercise  the  power  without  the  express  directions  of  the  com- 

*  Ante,  p,  309.  tion  of  the  court  or  officer  issuing  it,  is  a  com- 

f  The   State   of  Illinois   v.   Delafield,   8  plete  justification  to  the  ministerial  officer  by 

Paige,  627.     See  this  case  for  a  discussion  of  whom  it  is  executed,  though  in  fact  the  court 

the  meaning  of  the  word  par,  and  of  the  sub-  or  officer  had  no  jurisdiction.     So  it  has  been 

ject  of  exchange.  decided  in  regard  to  an  execution,  regular  on 

\  Agent  of  State  Prison  v.    Lathrop,   1  its   face,  issued  on  a  justice's  judgment  in  a 

Michigan,  438.  case  where   the  justice   had  no  jurisdiction ; 

I  Denning  v.    Smith,    3   J.    C.    R.    332;  Savacool   v.    Boughton,    5  Wend.  170;    and 

Nixon  v.  Hyserott,  5  J.  R.  58.  also  in  regard  to  a  school-district  tax  warrant 

In  regard  to  these  questions  of  the  power  regular  on  its  face,  though  the  district  meet- 

and  jurisdiction  of  public  officers,  we  may  ing  afwhich  the  tax  was  voted,  was  illegal ; 

here  notice  the  rule  that  process  regular  on  Abbott  v.  Yost,  2  Denio,  86. 
its  face,  and  apparently  within  the  jurisdic- 


QUORUM.  331 

missioners.  "  It  is  of  the  greatest  public  importance,"  says  Mr. 
Senator  Verplanck,  "  to  establish  the  general  rule  of  agency, 
that  '  delegated  authority  cannot  be  delegated  again  without 
special  power  so  to  do,'  as  governing  the  official  powers,  acts, 
and  contracts  of  our  State  officers."* 

Where  a  public  body  or  officer  has  been  clothed  by  statute 
with  power 'to  do  and  act  concerning  the  public  interest  or  the 
rights  of  third  persons,  the  execution  of  the  power  may  be  in- 
sisted on  as  a  duty,  even  though  the  phraseology  of  the  statute 
be  permissive  only ;  and  if  the  duty  is  not  performed,  an  action 
will  lie.  So,  where  the  corporation  of  the  city  of  New  York 
were  empowered  to  cause  sewers  to  be  made  in  that  city,  and 
to  cleanse  the  same,  it  was  held  that  it  was  their  duty  to  keep 
them  clean,  and  that  an  action  would  lie  for  negligence  in  re- 
lation thereto.f  But  in  order  to  succeed  in  such  an  action,  it 
must  be  clear  that  a  duty  is  imposed  by  law.  So,  where  in  New 
York  the  officers  and  agents  of  a  city  corporation  assumed  to 
build  a  bridge,  under  the  authority  of  a  statute  not  constitu- 
tionally passed  for  want  of  the  required  legislative  majority,  and 
the  bridge  fell  by  reason  of  its  negligent  construction,  the  corpo- 
ration was  held  not  to  be  liable.  J 

In  regard  to  the  number  requisite  to  constitute  a  quorum  of 
the  members  of  a  public  body,  or  the  number  requisite  to  do 
business,  it  has  long  been  settled  that,  where  a  statute  consti- 
tutes a  board  of  commissioners  or  other  officers  to  decide  any 
matter,  as  to  open  books,  to  receive  subscriptions,  and  distribute 
the  stock  of  a  railroad  company,  but  makes  no  provision  that  a 
majority  shall  constitute  a  quorum  /  all  must  be  present  to  hear 
and  consult,  though  a  majority  may  then  decide.  J  (a) 

*  Lyon  v.  Jerome,  26  "Wend.  485,  496.  the  court,  what  was  the  precise  point  which 

f  The  Mayor  of  N.  Y.  T.  Furze,  3  Hill,  they  intended  to  decide.    I  give  the  substance 

612 ;  Henley  v.  Mayor  et  al.  of  Lyme  Regis,  of  the  marginal  note.     See   also  People  v. 

5  Bing.  91,  3  Barn.  &  Adol.  17 ;  1  Bing.  E.  C.  Cooper,  6  Hill,  516. 

222,  s.  c.  in  error.  |  Withnell   v.   Gartham,    6  T.    R.    388 ; 

I  The  Mayor,  &e.  of  Albany  v.  Cunliff,  2  Grindley   et   al  v.  Barker  et    al.    1  B.  &  P. 

Corns.  165.     It  must,  however,  be  admitted  229;    Expiate  Rogers,  7  Cow.  526 ;   Crocker 

that  in  this  case  it  is   not  easy  to  ascertain  v.  Crane,   21  Wend.  211;   Babcock  T.  Lamb, 

from  the  opinions  of  the  different  members  of  1  Cowen,  238.     In  New   York  the  Revised 

(a)  Where  a  statute  gives  a  power  to  a  board  of  public  officers,  it  is  sufficient  if  a 
majority  act  upon  the  notice  to  all;  so  where  power  is  given  to  "the  judges." 
Merchant  v.  North,  10  Ohio,  K  S.  251. 


332  REVENUE   LAWS. 

Revenue  Laws. — We  have  already  referred*  to  the  language 
which  has  been  held  in  regard  to  laws  passed  for  the  collection 
of  revenue,  with  reference  to  the  principles  of  strict  and  liberal 
construction.  We  have  here  to  consider  the  general  principles 
of  interpretation  which  are  to  be  applied  to  them.  The  Supreme 
Court  of  the  United  States  has  said  that  "  laws  imposing  duties 
on  the  importation  of  goods,  are  intended  for  practical  use  and 
application  by  men  engaged  in  commerce.  Merchants  are  not  sup- 
posed to  be  men  of  science, — naturalists,  geologists  or  botanists ; 
and  it  is  a  settled  rule  in  the  interpretation  of  statutes  of  this 
description,  to  construe  the  language  adopted  by  the  Legislature, 
and  particularly  in  the  denomination  of  articles,  according  to 
the  commercial  understanding  of  the  terms  used."  f 

Mr.  Justice  Story,  on  the  first  Circuit,  has  said  that, — 

Acts  of  this  nature  are  to  be  interpreted,  not  according  to  the  abstract  pro- 
priety of  language,  but  according  to  the  known  usage  of  trade  and  business, 
at  home  and  abroad.  If  an  article  has  one  appellation  abroad,  and  another  at 
home,  not  with  one  class  of  citizens  merely,  whether  merchants,  or  grocers,  or 
manufacturers,  but  with  the  community  at  large,  who  are  buyers  and  sellers, — 
doubtless  our  laws  are  to  be  interpreted  according  to  that  domestic  sense. 
But,  where  the  foreign  name  is  well  known  here  and  no  different  appellation 
exists  in  domestic  use,  we  must  presume  that,  in  a  commercial  law,  the  Legis- 
lature used  the  word  in  the  foreign  sense.  I  say  nothing,  as  to  what  rule  ought 
to  prevail  where  an  article  is  known  by  one  name  among  merchants  and  another 
by  manufacturers  or  the  community  at  large,  in  interpreting  the  legislative 
meaning  of  the  tariff  act.  Congress,  under  such  circumstances,  may  perhaps 
be  fairly  presumed  to  use  it  in  the  more  general  or  more  usual  sense,  rather 
than  in  that  which  belongs  to  a  single  class  of  citizens.  But  this  may  well  be 
left  for  decision  until  the  very  question  arises. 

I  agree  in  the  law  as  laid  down  in  the  case  of  Two  Hundred  Chests  of  Tea, 
Smith,  Claimant,  9  Wheaton  R.  435.  That  case  was  as  fully  considered,  and 

Statutes  provide,    "  Whenever    any  power,  and  adjudge  that  the  commissoner  was  with- 

authority  or  duty  is  confided  by  law  to  three  out  the  authority  to  make  it.    His  powers  and 

or  more    persons,  and  whenever    three   or  duties  are  strictly  of  a  ministerial  character, 

more  persons  or  officers  are  authorized  or  re-  People  v.  Schoonmaker,  19  Barb.  657. 
quired  by  law  to  perform  any  act,  such  act          *  Ante,  p.  288. 

may  be  done,  and  such  power,  authority  or          f  Two  Hundred  Chests  of  Tea,  9  Wheat, 

duty  may  be  exercised  and  performed  by  a  430,  438  ;  Elliott  v.  Swartwout,    10   Peters, 

majority  of  such  persons  or  officers,  upon  a  137;    see  this  case,  as  to  the  distinction  be- 

meeting  of  all  the  persons  or  officers  so  en-  tween  woolen  goods  and  worsted  goods, 
trusted  or  empowered,  unless  special  provision          "Public  policy,  national  purposes,  and  the 

is  otherwise  made."     2  R.  S.  part  iii,  title  17,  regular   operations    of  government,  require 

§  27,  vol.  ii,  p.  565.  that  the  revenue  system  should  be  faithfully 

In  New  York  the  act  of  1848,  creating  the  observed  and  strictly  executed,"  says  Mr.  J. 

office  of  Auditor  of  the  Canal  Department,  Chase,  in  Priestman  v.  the  United  States,  4 

conferred  on  him  no  power  to  look  behind  a  Dallas,  28,  34.     And  see  U.  S.  v.  100  Barrels 

draft  drawn' by  one  of  the  canal  commissioners  of  Spirits,  2  Abb.  U.  S.  R.  305. 


PENAL   LAWS.  333 

as  deliberately  weighed,  as  any  which  ever  came  before  the  court.  It  was 
there  laid  down,  that  in  construing  revenue  laws,  we  are  to  consider  the  words 
not  as  used  in  their  scientific  or  technical  sense,  where  things  are  classified 
according  to  their  scientific  characters  and  properties,  but  as  used  in  their  known 
and  common  commercial  sense  in  the  foreign  and  domestic  trade.  Laws  of 
this  sort  tax  things  by  their  common  and  usual  denominations  among  the 
people,  and  not  according  to  their  denominations  among  naturalists,  or  botan- 
ists, or  men  in  science.* 

Penal  Laws. — Under  the  head  of  incidents  and  attributes 
of  statutes  in  our  fourth  chapter,  and  under  that  of  strict  and 
and  equitable  construction  in  the  last,  we  have  already  had  oc- 
casion to  consider  many  questions  in  regard  to  penal  statutes. 
Certain  other  rules  remain,  which  more  properly  belong  to  this 
place. 

The  question  is  often  raised,  whether  a  given  statute  is  prop- 
erly to  be  classed  as  a  penal  or  a  remedial  law ;  and  it  does 
not  seem  clearly  settled  what  constitutes  a  penal  statute.  A 
statute  declaring  that  an  indictment  for  an  offence  committed 
on  board  of  a  boat  navigating  a  river  or  canal,  may  be  found 
in  any  county  through  which  the  vessel  shall  pass,  has  been 
said  not  to  be,  properly  speaking,  a  penal  statute,  as  it  neither 
creates  the  offence,  prescribes  the  punishment,  nor  alters  the 
mode  of  trial ;  it  merely  changes  the  venue,  f  In  Maine,  it  has 
been  said,  that  a  statute  declaring  that  any  person  who  assists 
a  debtor  to  defraud  his  creditor  by  making  a  fraudulent  con- 
cealment or  transfer  of  his  property,  shall  be  answerable  in  a 
special  action  on  the  case  to  any  creditor,  in  double  the  amount 
so  fraudulently  concealed  or  transferred,  is  not  a  penal  statute. $ 
A  statute  giving  double  damages  to  a  landlord  against  a  stranger 
for  assisting  a  tenant  in  carrying  off  and  concealing  his  goods, 
by  which  the  plaintiff  was  prevented  from  distraining  for  his 
rent,  has  been  said  in  England  to  be  a  purely  remedial  statute.  | 
And  so,  in  Massachusetts,  a  statute  giving  double  damages 
against  a  town,  for  an  injury  to  the  plaintiff  caused  by  a  de- 
fect in  a  highway,  has  been  similarly  regarded.  Shaw,  C.  J.,in 
delivering  the  opinion  of  the  court,  said,  "We  think  the  action 

*  II.  S.  v.  Breed,  1  Sumner,  159,  163,  164.  brook  v.  Handley,  2Y  Maine,  53 ;  Thacher  v. 

f  The  People  v.  Hulse,  3  Hill,  309.  Jones,  31  Maine,  528. 
\  Frohock  v.  Pattee,  38  Maine,  103 ;  see  ||  Stanley  v.  Wharton,  9  Price,  301. 

also,  Quimby  v.  Carter,  20  Maine,  218;  Phil- 


334  PENAL  LAWS. 

in  the  present  case  is  purely  remedial,  and  that  it  has  none  of 
the  characteristics  of  a  penal  prosecution.  All  damages  for 
neglect  or  breach  of  duty  operate  to  a  certain  extent  as  punish- 
ment ;  but  the  distinction  is  (in  the  case  of  a  penal  action), 
that  it  is  prosecuted  for  the  purpose  of  punishment,  and  to 
deter  others  from  offending  in  like  manner.  Here,  the  plaintiff 
sets  out  the  liability  of  the  town  to  repair,  and  an  injury  to 
himself  from  a  failure  to  perform  that  duty.  The  law  gives 
him  enhanced  damages ;  but  they  are  recoverable  to  his  own 
use,  and  in  form  and  substance,  the  suit  calls  for  indemnity."  * 
So,  too,  it  has  been  said,  a  statute  giving-  four  times  as  much 
damage  as  is  allowed  by  law  for  the  detention  of  other  debts, 
is  penal  in  its  character;  but  as  it  is  given  to  the  party  in- 
jured, who  seeks  the  recovery  of  a  just  debt  to  which  the  in- 
creased damages  are  made  an  incident,  a  suit  therefor  is  not 
properly  to  be  regarded  as  a  penal  action.f 

But  on  the  contrary,  where  a  statute  gave  treble  damages 
against  any  person  who  should  commit  waste  on  land  pending 
a  suit  for  its  recovery,  the  court  said,  that  the  act  did  not  apply 
to  a  party  wholly  ignorant  that  any  suit  was  pending,  saying, 
"  We  can  hardly  suppose  the  Legislature  intended  to  punish  so 
severely,  a  trespasser  wholly  ignorant  of  the  pendency  of  the 
suit.  The  statute  is  highly  penal,  and  should  therefore  be 
limited  in  its  application  t.o  the  object  the  Legislature  had  in 
view."^  Where  a  bridge  company  act  declared  that  it  should 
not  be  lawful  for  any  person  to  cross  the  lake  over  which  the 
bridge  was  constructed,  within  three  miles  of  it,  without  pay- 
ing toll,  a  person  entered  the  lake  on  the  ice  six  miles  from 
the  bridge,  and  came  off  on  the  other  side  sixty  rods  from  it. 
In  an  action  brought  to  recover  back  tolls  paid,  the  court  held 
that  no  toll  could  be  demanded,  saying,  "  The  act  is  in  a 
measure  penal,  and  ought  to  be  strictly  construed.  In  the  con- 
struction of  statutes  made  in  favor  of  corporations  and  partic- 

*Reed  T.  Northfield,   13  Pick.  94,   100,  Squire,   5  Pick.    168;  Lee  v.  Clark,  2  East, 

101.    And  on  the  ground  that  it  was  not  a  333;  Newcomb  v.  Butterfield,  8  J.  R.  266. 

penal  action,  it  was  held  in  this  case  not  to  f  The    Suffolk  Bank  v.  The   Worcester 

be  necessary  that  the  declaration  should  con-  Bank,  6  Pick.   106;  Reed  v.  Northfield,   13 

elude,  contra  formam  statuti.  Pick.  94;  Palmer   v.  York  Bank,  18  Maine, 

See  to  this  latter  point  Wells  v.  Iggulden,  166  ;  Bayard  v.  Smith,  17  Wend.  88. 

5  "Dowl.  &  Ryl.  13  ;  s.  c.  3  Barn.  &  Ores.  186 ;  \  Reed  v.  Davis  et  al.  8  Pick.  515,  516. 
Peabody  v.  Hayt,  10  Mass.  36;  Nichols  v. 


PENAL  LAWS.  335 

ular  persons,  and  in  derogation  of  common  right,  care  should 
be  taken  not  to  extend  them  beyond  their  express  words  and 
their  clear  import."  * 

Some  special  rules  are  to  be  noticed.  Where  a  penalty  is 
imposed  by  statute  upon  a  party  for  entering  into  a  contract, 
the  imposition  of  the  penalty  in  law  amounts  to  an  implied 
prohibition  of  the  act  for  which  the  penalty  is  inflicted,  and 
the  contract  is  thereby  rendered  illegal  and  void.f 

In  penal  suits,  unless  a  general  form  of  declaration  is  ex- 
pressly authorized  by  statute, -the  declaration  must  set  forth  the 
particular  acts  or  omissions  which  constitute  the  cause  of  ac- 
tion, and  by  which  the  alleged  penalty  was  incurred.  This  is 
the  general  rule.;]! 

Where  a  statute  authorizes  any  person  on  giving  security 
for  costs  to  prosecute  for  penalties  against  an  excise  law  in  the 
name  of  the  overseers  of  the  poor,  where  those  officers  had 
neglected  for  ten  days  to  prosecute,  the  defendant  cannot  object 
that  the  ten  days  had  not  elapsed,  nor  that  sufficient  security 
had  not  been  given.  [ 

In  Pennsylvania,  where  the  statute  forbids  the  sale  of  liquors 
on  Sunday,  and  prescribes  a  penalty  of  fifty  dollars  against  any 
one  who  shall  be  duly  convicted  thereof,  the  proper  proceeding 
under  it  is  a  criminal  proceeding,  and  not  a  qui  tarn  action. ^[ 

It  has  been  said  that  the  same  expressions  may  be  differ- 
ently construed,  according  to  their  appearing  in  a  civil  or  a 
criminal  action.  So  in  a  prosecution  for  libel,  where  the 
defendant  was  convicted,  motion  was  made  in  arrest  of  judg- 
ment, on  the  ground  that  the  act  under  which  the  conviction 

t  O 

was  obtained,  had  been  repealed  after  conviction.  Its  language 
was  doubtful ;  but  it  was  said  by  Tilghman,  C.  J.,  "  It  is  said, 

*  Spague  v.  Birdsall,  2  Cowen,  419,  420.  mode   of    declaring  in  proceedings   of   this 

f  Williams  v.    Tappan,    3   Foster,    385;  clas?,  by  merely  alleging  the  "  indebtedness" 

Brackett  v.  Hoyt,  9  Foster,  264.     It  was  de-  of  the   defendant,  with   a   reference   to   the 

cided  in  this  case  that  it  was  the  offer  for  a  statute.      2  R.    S.  482,    §  10.      But  this   is 

sale  of  pressed   hay,  and  not  the  sale  unac-  abolished  by  the  Code  of  Procedure,  §  140, 

companied  by  an  offer,  that  was  made  illegal  and  the  old  rule,  as  stated  in  the  text,  is  re- 

by  the  statute.  vived.    Morehouse  et  al.  v.  Crilley,  8  Howard 

%  1  Chit.  PI.  405  ;  Cole  v.  Smith,  4  John.  Pr.  R.  431. 

193;  Bigelow  v.  Johnson,  13  John.  428;  Col-  |  Thayer  v.  Lewis,  4  Denio,  269. 

lins  v.  Ragrew,  15  J.  R.  5  ;  The  People  v.  If  Specht  T.  The  Commonwealth,  24  Penn. 

Brooks,  4  Denio,  469.     The  Revised  Statutes  103. 
of  New  York  authorize  a  more  compendious 


336  PENAL  STATUTES. 

the  law  is  not  drawn  so  clearly  as  it  might  have  been.  If  the 
same  expressions  had  been  applied  to  a  civil  action,  I  should 
have  thought  myself  warranted  in  giving  it  a  different  construc- 
tion, because  then  it  would  have  operated  in  a  retrospective 
manner,  so  as  to  take  away  a  vested  right.  But  there  is  a  wide 
difference  between  a  civil  and  a  criminal  action.  In  nothing  is 
the  common  law  which  we  have  inherited  from  our  ancestors 
more  conspicuous,  than  in  its  mild  and  merciful  intendnient 
towards  those  who  are  objects  of  punishment ;  we  apply  the 
principles  of  the  law  to  the  construction  of  statutes."  And 
the  judgment  was  arrested.* 

It  has  been  said  that  although  legislative  enactments  of  an 
ordinary  remedial  or  directory  character  in  reference  to  cor- 
porations, may  perhaps  be  applicable  to  some  stock  associations 
formed  by  articles  of  copartnership,  provisions  creating  misde- 
meanors and  imposing  penalties  and  forfeitures  cannot  be  so 
extended  by  implication  without  violating  a  fundamental  rule 
in  the  interpretation  of  statutes,  and  enacting  ex  post  facto  law 
by  judicial  legislation.-)- 

A  question  has  been  raised,  whether  two  penalties  can  be 
incurred  in  one  and  the  same  day ;  and  it  seems  to  depend 
much  on  the  nature  of  the  offence  and  the  language  used.  So, 
for  keeping  or  injuring  greyhounds,  it  was  held  that  but  one 
penalty  could  be  demanded.  J  But  for  selling  books  illegally, 
it  was  held  that  where  there  had  been  two  distinct  acts  of  sale 
on  the  same  day  this  constituted  two  different  offences,  for 
which  two  penalties  were  recoverable.! 

In  England  it  has  been  decided  in  regard  to  what  are 
called  qui  tarn  actions,  or  those  brought  by  informers  for  the 
violation  of  statutes,  that  the  right  to  the  penalty  vests  in  the 
informers  immediately  on  filing  the  information ;  and  therefore 
though  the  king  may  pardon  the  offence  so  as  to  discharge  the 
share  of  the  crown,  he  cannot  deprive  the  informer  of  his 
portion.4^ 

*  Commonwealth  v.  Duane,  1  Binney,  601.  Bleasdale,  4  T.  R.  809  ;  Dwarris,  p.  642.  So 

\  Curtis  v.  Leavitt,  17  Barb.  39,  362.  too,  for  exercising  a  trade  on  Sunday,  Cripps 

j  Marriott  v.  Shaw,  Com.  274 ;  The  v.  Durden,  Dwarris,  p.  643. 

Queen  v.  Matthews,  10  Mod.  27;  Hardyman  |  Brooke,  g.  t.  v.  Milliken,  3  T.  R.  509. 

v.  Whitaksr,  Bui].   N.  P.  189  n.  (b.);  Rex  v.  «j[  Grosset  v.  Ogilvie,  6  Bro.  P.  C.  527. 


ACTS  IN  VIOLATION  OF   STATUTES.  337 

The  Revised  Statutes  of  New  York  declare,  that  where  the 
performance  of  any  act  is  prohibited  by  any  statute,  and  no 
penalty  for  the  violation  of  such  statute  is  imposed  either  in  the 
same  section  containing  such  prohibition,  or  in  any  other  section 
or  statute,  the  doing  such  act  shall  be  deemed  a  misdemeanor.* 

Laws  as  Affecting  the  State  or  Government.(a) — We  have 
already  had  .occasion  to  call  attention  to  the  force  and  meaning 
of  the  maxim  nullum  tempus  occurrit  regi  (ante,  p.  84) ;  and 
also  to  the  general  rule  in  the  construction  of  statutes  declaring 
or  affecting  rights  and  interests,  not  to  interpret  them  so  as  to 
embrace  the  sovereign  power  of  the  State,  unless  that  idea  be 
distinctly  expressed,  or  result  by  necessary  implication.  So  in 
Mississippi  it  has  been  said  to  be  the  settled  doctrine  that  the 
general  words  of  a  statute  do  not  include  the  State  or  affect  her 
rights,  unless  she  be  specially  named,  or  it  be  clear  and  indis- 
putable from  the  act  that  it  was  intended  to  include  the  State.f 

Effect  of  Statutes  on  Contracts,  or  Acts  in  Violation  of 
them. — We  have  already  %  called  attention  to  the  rule  which 
declares  void  all  agreements  made  in  contravention  of  statutes  ; 
the  subject  is  of  sufficient  importance  to  demand  here  more  par- 
ticular attention.  The  general  principle  is  that  an  individual 
shall  not  be  assisted  by  the  law  in  enforcing  a  demand  originat- 
ing in  a  breach  or  violation  on  his  part  of  its  principles  or  en- 

*  2  R.  S.  part  iv,  chap,  i,  title  6,  vol.  ii,  p.  trary  to  the  present  rule  in  regard  to  grants, 

696,  §  55  [Sec.  39].  most  strongly  in  favor  of  the  grantee,  2  Bl. 

f  Josselyn  v.  Stone  et  al.  28  Mississippi,  Com.  347;  Stanhope  v.  Bishop  of  Lincoln  et 

753 ;  ante,  p.  28.     See  also  p.  49,  as  to  pro-  al.   Hob.  243 ;  Turner  &  Atkyns,  B.  Hard, 

visions;  1   Black.  Com.   261;  Com.  Dig.  tit.  309;  Bro.  Abr.  Patent,  62.     But  the  rule  ap- 

Parliament,  R.  8  ;  The  King  v.  Allen,  15  East,  pears   subject   to   many   qualifications.      Sir 

333 ;  The  King  v.  Inhabitants  of  Cumberland,  John  Molyn's  Case,  6  Co.   5 ;  Alton   Wood's 

6  Term  R.  194;  United  States  v.  Hoar,  2  Ma-  Case,  1  Coke,  26.     See  opinion  of  Mr.  Justice 

son  R.   314;    Commonwealth   v.    Baldwin,   1  Story  in   Charles   River   Bridge  v.   Warren. 

"Watts   Penn.   R.  54;    People  v.  Rossiter,  4  Bridge,  11  Peters,  589.     The  idea  seems  to 

Cowen,  143;  United  States  v.   Hewes,  U.  S.  have  resulted  from  a  notion  of  the  impropriety 

D.  C.  for  Pennsylvania,  July,  1840;   1  Kent  of  setting  strict  bounds  to  royal  munificence. 

Com.  p.  460.  See  Domat's  ru'es,  §  17,  ante,  p.  245. 

lu  regard  to  royal  grants,  the  old  rule  ap-          \  Ante,  p.  69. 
pears  to  have  been  that  they  were  taken,  con- 

(«)  When  the  State  is  Bound. — It  is  bound  by  a  law  prescribing  method  of  investi- 
gating elections.  Commonwealth  v.  Garrigues,  28  Penn.  St.  9.  It  is  not  bound  by  a 
law  restricting  judgment  liens  unless  the  intent  is  clearly  manifest.  Josselyn  v.  Stone, 
28  Miss.  753.  Nor  by  a  statute  by  which  any  of  its  prerogatives  or  rights  would  be 
curtailed  or  taken  away,  unless  the  language  is  express.  State  v.  Kinne,  41  N.  H. 
238.  See  Martin  v.  State,  24  Tex.  61 ;  Green  v.  U.  S.  9  Wall.  655. 
22 


338  ACTS  IN  VIOLATION  OF  STATUTES. 

actments.  *  This  is  expressed  in  the  maxims  Ex  turpi  contracts 
oritur  non  actio  /  Ex  dolo  malo  non  oritur  actio,  and  other  simi- 
lar and  familiar  forensic  adages.  The  rule  finds  frequent  appli- 
cation in  the  common  law,  and  has  decided  a  great  number  of 
cases.  So,  agreements  in  consideration  of  future  illicit  cohab- 
itation ;  for  the  sale  of  libelous  or  immoral  works ;  immoral 
wagers ;  agreements  in  restraint  of  trade  or  of  marriage  ;  for  the 
sale  of  offices  ;  affecting  the  course  of  justice ;  relating  to  trading 
with  an  enemy ;  and  generally  all  contracts  tainted  in  any  way 
with  fraud,  are  absolutely  void  and  incapable  of  being  en- 
forced, f 

The  general  principle  is  the  same  in  regard  to  legislative 
enactments,  and  is  uniformly  true  in  regard  to  all  statutes  made 
to  carry  out  measures  of  general  policy.  This  often  results  from 
the  terms  of  the  statutes  themselves.  So,  the  statutes  against 
usury,  against  gaming,  against  stock-jobbing,  and  in  many  other 
cases,  peremptorily  declare  all  contracts  in  violation  of  their 
provisions  void.  And  the  rule  holds  equally  good  if  there  be 
no  such  express  provision,  in  regard  to  all  statutes  intended 
generally  to  protect  the  public  interests  or  to  vindicate  public 
morals,  (a) 

So,  policies  effected  in  England  on  vessels  sailing  during 
war,  in  contravention  of  the  convoy  acts,  were  held  void.J  So 
where  the  voyage  was  against  the  provisions  of  the  East  India 
Company  acts,|  or  the  South  Sea  Company  acts.^"  So,  a  note 
discounted  by  the  teller  of  a  bank  for  his  own  benefit,  in  viola- 

*  Chitty  on  Contracts,  ch.  iv ;  Parsons  on  ||  Johnson  v.  Sutton,  1  Doug.  254  ;  Cam- 
Contracts,  382,  note  a.  den-  v.  Anderson,  5  T.  R.  709  ;  Chalmers  v. 

f  Chitty  on  Contracts,  ch.  iv.  Bell,  3  B.  &  P.  604. 

\  Wainhouse  v.  Cowie,  4  Taunt.  178;  ^j"  Toulmin  v.  Anderson,  1  Taunt.  227; 

Darby  v.  Newton,  6  Taunt.  544.  Hodgson  v.  Fullarton,  4  Taunt.  787. 

(a)  Where  the  court  has  for  a  long  time  been  equally  divided  as  to  the  validity 
of  a  repealing  act,  and  finally  holds  it  void,  it  seems  that  the  statute  supposed  to 
have  been  repealed  -will  not  be  treated  as  in  force  during  such  period.  Ingersoll  v. 
State,  11  Ind.  464.  This  is,  of  course,  directly  opposed  to  all  correct  theory  of  judi- 
cial decision  and  of  its  effects,  and  was  a  weak  yielding  to  the  apparent  hardship  of 
the  case,  and  is  worthless  as  a  precedent.  The  original  statute  was  either  repealed 
or  was  in  force.  For  a  court  to  say  that  it  was  not  repealed,  but  that  for  a  long  time 
it  was  not  really  in  force,  because  they  were  unable  to  agree  whether  it  was  repealed 
or  not,  is  one  of  the  rarest  specimens  of  judicial  absurdity  which  the  reader  meets 
with  in  an  examination  of  the  reports. 


ACTS   IN   VIOLATION    OF  STATUTES.  339 

tion  of  the  statute  of  the  State  of  New  York  (1  K.  S.  595, 
§  28)  concerning  the  discounting  of  commercial  paper  by  officers 
and  agents  of  banking  corporations,  is  void.* 

It  is  very  important,  however,  to  observe  the  modifications 
and  qualifications  by  which  this,  like  almost  all  the  general 
rules  of  our  system,  is  hedged  about.  We  have  already  f  had 
occasion  to  notice  that  when  the  statute  violated  is  only  passed 
to  secure  the  revenue, — as  for  instance,  prohibiting  sales  of 
certain  articles  without  a  license,  and  containing  a  penalty  by 
way  of  securing  payment  of  the  license  money, — the  mere 
violation  of  this  revenue ,  statute  cannot  be  set  up  as  avoiding 
a  contract.^  So  again,  a  sale  of  property  out  of  England,  the 
seller  not  being  a  British  subject,  is  held  valid,  though  he 
knows  that  the  purchaser  intends  to  smuggle  the  property  into 
England.! 

O  II 

It  has  been  said  that  even  though  a  statute  merely  inflicts  a 
penalty  for  doing  a  certain  act,  without  expressly  prohibiting 
it,  a  contract  having  such  matter  for  its  consideration  or  object 
is  wholly  invalid.!"  But  this  seems  subject  to  qualification, 
dependent  on  the  point  whether  the  act  is  prohibited,  or 
whether  a  penalty  is  merely  attached  to  its  violation. 

It  has  been  said  that  the  merely  selling  goods  knowing  that 
the  buyer  will  make  an  illegal  use  of  them,  is  not  sufficient  to 
deprive  the  vendor  of  his  just  right  of  payment;  and  that  to 
effect  this  it  is  necessary  that  the  vendor  should  be  a  sharer  in 
the  illegal  transaction.**  This  was  said  in  a  case  where  the  act 
prohibited  was  forbidden  for  the  purposes  of  revenue ;  but 
when  we  take  into  view  the  formidable  consequences  of  the 
rule  that  every  one  is  presumed  to  know  the  law,  the  doctrine 
may  not  be  unjust  in  general  application.  A  seller,  for  instance, 
may  know  the  destination  intended  by  the  purchaser  for  the 
articles  which  he  sells,  that  destination  may  be  illegal,  the  law 

*  Henry  v.  Salina  Bank,  1  Corns.  83.  <fe  E.  599;  Pellicat  v.  Angel,  2  C.  M.  &  Ros. 

f  Ante,  pp.  71  and  72.  3J1. 

\  Johnsou    v.   Hudson,    11    East,    180;          ^[  Seidenbender  v.  Charles,  4  Serg.  &  R, 

Brown  v.  Duncan,  10  Barn.  &  Cres.  93;  Cope  150;  De  Begnis  v.  Armistead,  10  Bing.  187, 

v.  Rowlands,  2  Mees.  &  Wels.  157 ;  See  Har-  citing  Lord  Holt's  dictum  in  Bartlett  v.  Vinor, 

ris  v.  Runnels,  12  Howard,  79.  Carthew,  252,  that  a  penalty  implies  a  prohi- 

|  Holman  v.  Johnson,  Cowp.  341 ;  Biggs  bition.      Vide  ante,  pp.  32  and  335. 
v.  Lawrence,  3  D.  &  E.  454 ;  Clugas  v.  Pena-          **  Hudson  v.  Temple,  5  Taunt.  181. 
luna,  4  D.  &  E.  466  ;  Warnell  v.  Reed,  5  D. 


340  ACTS   IN   VIOLATION   OF   STATUTES. 

presumes  that  the  seller  knows  the  fact  of  the  illegality  as  well 
as  the  fact  of  the  sale,  although  in  truth  he  may  be  perfectly 
ignorant  of  the  legal  objection,  or  his  attention  may  be  in  no 
way  called  to  the  point. 

We  may  here  notice  a  point  bearing  upon  this  branch  of 
our  subject,  as  connected  with  the  conflict  of  laws.  We  have 
just  seen  that  sales  of  property  out  of  England  by  a  foreigner, 
of  goods  intended  to  be  smuggled  into  England  is  valid ;  and 
so  in  this  country,  as  to  contracts  of  sale,  mere  knowledge  on 
the  part  of  the  seller  that  the  goods  are  to  be  used  in  another 
State,  contrary  to  the  laws  of  such  State,  does  not  make  the 
sale  illegal  in  a  State  where  the  -sale  is  not  prohibited,  and 
consequently  the  contract  is  valid.  So,  where  spirituous  liquors 
were  sold  in  Massachusetts,  where  the  sale  was  legal,  upon  an 
action  being  brought  in  New  Hampshire,  where  such  sales 
are  illegal,  it  was  held  that  mere  knowledge  on  the  part  of  the 
vendor  that  the  purchaser  intended  to  sell  them  in  New  Hamp- 
shire, contrary  to  the  laws  of  that  State,  was  not  a  defence  to 
the  action.* 

Again,  where  a  statute  is  framed  merely  for  a  special  or 
collateral  purpose,  as  an  act  passed  to  give  to  a  certain  class  a 
readier  mode   of  redressing   their   rights,   a   violation  of  this* 
statute  will  not  render  the  whole  transaction  illegal,  nor  deprive 
the  violator   of   the   statute   of   his  lesral  remedies  in  other 

O 

respects.f  Thus,  where  a  statute  prohibited  masters  of  vessels 
under  a  penalty,  from  shipping  seamen  without  a  certain  agree- 
ment being  signed,  but  did  not  declare  the  voyage  rendered 
illegal  by  reason  of  the  violation  of  the  statute, — an  insurer 
on  the  ship  was  held  not  to  be  thereby  relieved  from  his  con- 
tract. 

So  again,  a  buyer  of  spirits  cannot  refuse  payment  because 
the  seller  violated  the  revenue  laws  in  the  sale,  by  not  trans- 
mitting a  permit  truly  specifying  the  strength  of  the  spirits. 
"  Where  the  consideration  and  the  matter  to  be  performed  are 
both  legal,"  says  the  King's  Bench,  "  we  are  not  aware  that  the 
plaintiff  has  ever  been  precluded  by  an  infringement  of  the  law 

*  Smith  r.  Godfrey,  8  Foster,  379.  f  Redmond  v.  Smith,  7  Man.  &  Gr.  457. 


CUMULATIVE    REMEDIES  AND   PENALTIES.  341 

not  contemplated  by  the  contract,  in  the  performance  of  some- 
thing to  be  done  on  his  part."  * 

So  on  the  same  principle,  in  Pennsylvania,  it  has  been  held 
that  a  party  who  erects  an  obstruction  in  a  navigable  stream, 
and  thereby  occasions  an  injury  to  another,  cannot,  in  an  action 
for  such  injury,  set  up  as  a  defence  that  the  plaintiff  was  un- 
lawfully engaged  in  worldly  employment  on  Sunday,  when  the 
injury  occurred.  The  law  relating  to  the  observance  of  the 
Sabbath  defines  a  duty  of  the  citizen  to  the  State,  and  to  the 
State  only.f  "  We  should,"  says  the  Supreme  Court  of  Penn- 
sylvania, "  work  a  confusion  of  relations,  and  lend  a  very  doubt- 
ful assistance  to  morality,  if  we  should  allow  one  offender 
against  the  law  to  the  injury  of  another,  to  set  off  against  the 
plaintiff  that  he,  too,  is  a  public  offender." 

We  have  already  had  occasion^  to  call  attention  to  the  rule 
that  where  an  instrument  contains  a  clause  or  provision  in  con- 
travention of  a  statute,  it  renders  the  whole  instrument  invalid. 
I  may  here  remark  that  the  rule  is  in  its  nature  arbitrary,  and 
calculated  to  work  injustice,  and  that  it  appears  to  be  subject  to 
exceptions.  So,  where  there  are  different  and  independent 
covenants  in  the  same  instrument,  part  may  be  good  and  part 
bad.  So,  a  personal  covenant  to  pay  a  rent  charge  may  be  good, 
and  the  security  of  the  rent  charge  on  the  living  may  be  bad.| 

Cumulative  Remedies  and  Penalties. — Where  a  precise 
remedy  for  the  violation  of  a  right  is  provided  by  statute,  it 
often  becomes  a  matter  of  interest  to  know  whether  the  statu- 
tory remedy  is  the  only  one  that  can  be  had,  or  whether  it  is  to 
be  regarded  as  merely  cumulative,  the  party  aggrieved  having 
also  a  right  to  resort  to  his  redress  for  the  injury  sustained,  at 
common  law,  or  independently  of  the  statute. (a)  In  regard  to 

*  Wetherell  v.  Jones,  3  Barn.  &  Ad.  221.  fl  Mouys  v.  Leake,  8  T.  R.  411 ;  Kerrison 

f  Mohney  v.  Cook,  26  Penn.  342.  v.  Cole,  8  East,  234  ;  Dwarris,   p.  638.     See 

\  Ante,  p.  73.  Chitty  on  Contracts,  p.  536. 

(a)  When  Statutory  Remedies  Exclusive.— For  cases  holding  such  remedies  exclu- 
sive, see  Camden  v.  Allen,  2  Dutch.  398  (taxes) ;  Victory  v.  Fitzpatrick,  8  Ind.  281 
(Eminent  domain) ;  MeCormack  v.  Terre  Haute,  &c.  K.  R.  9  Ind.  283  (Eminent  do- 
main). A  statute  prescribing  a  method  of  investigating  elections  takes  away  the 
common-law  remedy  in  cases  covered  by  it.  ,  Commonwealth  v.  Garrigues,  28  Penn. 
St.  9.  When  a  pecuniary  obligation  is  created  by  statute,  and  a  remedy  is  given  by 


342  CUMULATIVE   REMEDIES    AND  PENALTIES. 

this  we  have  already  noticed  the  rule  that  where  a  statute  does 
not  vest  a  right  in  a  person,  but  only  prohibits  the  doing  of 
some  act  under  a  penalty,  in  such  a  case  the  party  violating  the 
statute  is  liable  to  the  penalty  only ;  but  that  where  a  right  of 
property  is  vested  by  virtue  of  the  statute,  it  maybe  vindicated 
by  the  common  law,  unless  the  statute  confines  the  remedy  to 
the  penalty.  So,  where  a  statute  vested  in  a  town  the  right  of 
disposing  of  the  privilege  of  taking  alewives  in  a  river  within 
the  limits  of  the  town,  and  enacted  that  persons  obstructing 
the  passage  of  the  fish  should  be  subject  to  a  penalty,  it  was 
held  that  the  remedy  prescribed  by  the  statute  was  cumulative, 
and  that  a  common-law  action  on  the  case  would  lie,  by  the 
vendee  of  the  privilege  against  any  person  obstructing  the  pas- 
sage of  the  fish.* 

So,  too,  in  England,  under  the  original  copyright  statute,  8 
Anne,  c.  19,  it  was  held  that  the  penalties  and  forfeitures  im- 
posed by  the  act  were  merely  cumulative  remedies,  and  that  a 
-common-law  action  on  the  case  would  lie  for  an  infringement  of 
the  owner's  right  of  property,  f  So  also  in  New  York,  in  the 
act  giving  R.  R.  Livingston  an  exclusive  right  to  the  navigation 
of  the  Hudson  River,  the  statutory  forfeitures  imposed  on  par- 
ties infringing  his  privilege  were  held  to  be  cumulative,  and  an 
injunction  was  sustained.^ 

We  have  also  noticed  the  rule,  that  if  a  statute  gives  a 
remedy  in  the  affirmative,  without  a  negative  expressed  or  im- 
plied, for  a  matter  which  was  actionable  at  the  common  law,  the 
party  may  sue.  at  the  common  law  as  well  as  upon  the  statute ; 
for  this  does  not  take  away  the  common-Jaw  remedy.  ||  So, 

*  Ante,  p.  76 ;  Barden  v.  Croker,  10  Pick,  with   approbation   in  Barden  v.  Croker,  10 

•383,  389.    The  regulation  and  preservation  of  Pick.  383. 

the  alewive  fishery,  has  been  an  object  of  the  J  Livingstdn  v.  Van  Ingen,  9  J.  R.  506, 

particular  attention  of  the  legislature  in  Mas-  662,  571.     The  acts  creating  the  monopoly 

sachusetts ;  see  Coolidge  v.  Williams,  4  Mass,  were  deemed  by  the  Supreme  Court  of  the 

R.  144,  where  it  js  said  to  be  a  part  of  the  United  States  to  be  unconstitutional,  so  far  as 

•common  law  of  the  State,  that  a  town  may  they  conflicted  with  the  general  coasting  sys- 

appropriate  the  fish  in  its  waters,  if  not  ap-  tern  of  the  United  States,  Gibbons  v.  Ogden, 

propriated  by  the  Legislature.  9  Wheat.  1. 

f  Beckford  v.   Hood,  7  T.   R.   620,  cited  ||  Com.  Dig.  Action  upon  Statute  C.  2  Inst. 

200.     Ante,  p^  75. 

means  of  a  peculiar  proceeding,  the  language  indicating  an  intent  that  such  remedy 
and  no  other  shall  be  pursued,  the  statutory  remedy  is  exclusive.  St.  Pancras  v.  Bat- 
lerbury,  2  C.  B.  (N.  8.)  471. 


CUMULATIVE  REMEDIES  AND  PENALTIES.  343 

where  the  Legislature  authorized  the  erection  of  a  mill-dam,  and 
provided  a  summary  mode  of  appraising  the  damage  of  those 
who  might  be  injured  by  it,  it  was  held  that  the  remedy  was 
merely  cumulative,  and  did  not  take  away  the  common-law  right 
of  action  on  the  case  for  the  injury ;  and  stress  was  laid  on  the 
fact  that  the  act  was  not  couched  in  negative  terms.* 

But  on  the  other  hand,  it  is  a  rule  of  great  importance,  and 
frequently  acted  upon,  that  where  by  a  statute  a  new  right  is 
given  and  a  specific  remedy  provided,  or  a  new  power  and  also 
the  means  of  executing  it  are  provided  by  statute,  the  power 
can  be  executed  and  the  right  vindicated  in  no  other  way  than 
that  prescribed  by  the  statute.  So,  an  indebitatus  assumpsit 
will  not  lie  for  the  benefit  derived  from  a  sewer,  where  the  law 
has  provided  for  its  construction  by  tax  or  assessment,  f  So, 
where  a  party  by  subscribing  an  act  of  association,  as  for  the 
purpose  of  making  a  road  or  building  a  bridge,  simply  engages 
to  become  the  proprietor  of  a  certain  number  of  shares,  without 
any  distinct  or  specific  promise  to  pay  such  assessments  as  may 
be  imposed,  the  only  remedy  in  case  of  non-payment  is  by  a  sale 
of  the  shares  to  raise  the  sum  assessed  on  them,  upon  the  ground 
that  the  corporation  has  no  power  at  common  law  to  make  any 
assessments  of  this  kind,  and  that,  when  a  statute  gives  a  new 
power  and  at  the  same  time  provides  a  means  of  executing  it, 
those  who  claim  the  power  can  execute  it  in  no  other  way. 
Where  on  the  other  hand  there  is  an  express  promise  to  pay  the 
assessment,'  then  the  party  is  answerable  to  the  corporation  on 
the  promise,  and  an  action  will  lie.J  So  in  Massachusetts  when 

*  Crittenden  v.  Wilson,  6  Cowen,  165.  whole  subject  has  been  very  elaborately  ex- 

f  City  of  Boston  v.  Shaw,  1  Met.  130, 138.  amined,  in  the  Hartford  and  New  Haven  R. 

i  In  Massachusetts,  see  New  Bedford  and  R.  Co.  v.  Kennedy,  12  Conn.  507,  et  seq,  per 

Bridgewater  Turnpike  Co.  v.  Adams,  8  Mass.  Huntington,  J.,  where  assumpsit  for  an  assess- 

138;  Andover  and  Medford  Turnpike  Co.  v.  ment  was  held  to  lie  against  the  stockholder 

Gould,  6  Mass.  40 ;  Worcester  Turnpike  Co.  of  a  corporation.     In  New  York,  see  Jenkins 

v.  Willard,  6  Mass.  80.     In  Franklin  Glass  v.  Union  Turnpike  Co.  1  Caines'  Cases  in  Er- 

Co.  v.  White,  14  Mass.  286,  the  same  rule  was  ror,   86;  The   Goshen  and  Minisink  Co.  v. 

applied  to  a  manufacturing  Co. ;  see  also  Es-  Hurtin,  9  J.  R.   217;  The  Dutchess   Cotton 

sex  T.  Co.  v.  Collins,  8  Mass.  292.     In  Taun-  Manufactory  v.  Davis,   14  J.   R.   238;   and 

ton  and  S.  B.  T.  Co.  v.  Whiting,  10  Mass.  327,  Spear  v.  Crawford,   14  Wend.  20,  where  the 

the  subscriber  was  held  liable.     See  also  Rip-  defendant  was  held  liable.      The    question 

ley  v.  Sampson,  10  Pick.  370,  and  Chester  seems  generally  to  turn  on  the  precise  form 

Glass  Co.  Jv.  Dewey,  16  Mass.  94;  see  also  of  the  association  or  corporation,  and  whether 

Trustees  of  Phillips   Limerick  Academy  v.  a  promise  to  pay  is  to  be  implied  or  not.     As 

Davis,  11  Mass.   113,  where  it  was  held  that  to  assessments  on  pews,  see  Trustees  of  F.  P. 

no  action  would  lie  on  a  voluntary  subscrip-  C.  in  Hebron  v.  Quackenbush,  10  J.  R.  217. 
tion  to  erect  an  academy.    In  Connecticut  the 


344  CUMULATIVE   REMEDIES   AND   PENALTIES. 

an  action  was  given  by  statute  against  the  directors  of  an  insolv- 
ent bank,  it  was  held  that  no  action  would  lie  against  them  at 
common  law,  on  the  same  ground  that  where  a  new  right  is 
given  or  a  new  duty  imposed  by  statute,  and  a  remedy  provid- 
ed to  enforce  such  duty  or  for  the  violation  of  such  right,  the 
remedy  given  must  be  pursued.*  So,  too,  in  the  same  State  an 
action  of  debt  does  not  lie  upon  an  award  of  damages  of  a  com- 
mittee of  the  sessions  for  locating  a  highway ;  a  remedy  by  dis- 
tress warrant  being  provided  by  the  statute.  "  Where  a  stat- 
ute gives  a  right  and  furnishes  the  remedy,  that  remedy  must 
be  pursued."!  And  so,  as  at  common  law  and  before  the  stat- 
utes of  18  Eliz.  and  6  Geo.  II,  the  putative  father  of  an  illegiti- 
mate child  was  under  no' legal  liability  to  maintain  his  illegiti- 
mate offspring,  and  as  that  liability  has  been  created  wholly  by 
statute,  the  remedy  prescribed  must  be  followed :  the  father  is 
liable  under  the  filiation  order,  but  no  action  of  assumpsit  for 
the  support  of  the  child  will  lie.J  So  too,  in  Indiana  where 
the  exclusive  privileges  of  ferries  were  not  known  till  they  were 
created  by  statute,  the  owners  of  ferries  must  rely  on  the  pro- 
visions of  the  act  for  their  security.  |  So,  too,  it  has  been  said 
in  Michigan,  that  where  a  statute  gives  a  new  right  and  pre- 
scribes a  particular  remedy,  such  remedy  must  be  strictly  pur- 
sued, and  the  party  is  confined  to  that  remedy  only, — as  to  re- 
cover threefold  the  amount  of  usurious  interest  paid.1]"  In  New 
Hampshire  it  has  been  said  that  where  a  statute  authorizes  the 
doing  of  certain  acts  (such  as  the  destruction  of  a  highway  by 
a  railway  company),  the  necessary  consequence  of  which  will 
be  to  injure  the  property  of  another,  and  at  the  same  time  pro- 
vides a  remedy  for  the  recovery  of  the  damages,  the  party  in- 
jured is  confined  to  the  statute  remedy  for  such  damages,  and 
no  remedy  can  be  had  upon  a  common-law  declaration.** 

In  Maine,  it  has  been  said  that  if  a  statute  gives  merely  a 
new  remedy  where  one  before  existed  at  common  law,  it  is 
cumulative,  and  the  party  injured  is  at  liberty  to  pursue  either. 

*  Hinsdale  v.  Lamed  et  al.  16  Mass.  65.  J  Lang  v.  Scott,  1  Blackford,  405;  ap- 

f  Gedney  v.  Inhabitants  of  Tewksbury,  3  proved  Almy  v.  Harris,  5  John.  R.  175. 

Mass.  807,309,  per  Sedgwick,  J.  vide  ante,  p.  76.  ^[  Thurston  v.  Prentiss  et  al.  1  Michigan, 

\  Moncrief  v.  Ely,  19  Wend.  405;  Came-  193. 

ron  v.  Baker,  1  Carr  &  Payne,  268  ;  Furillio          **  Henniker  v.  Contoocook  Valley  R,  R.  9- 

v.  Crowther,  7Dowl.  &  Ryl.  612.  Foster,  147. 


CUMULATIVE  REMEDIES  AND  PENALTIES.  345 

If  a  statute  gives  the  same  remedy  which  the  common  law  does, 
it  is  merely  affirmative,  and  the  party  has  his  election  which  to 
pursue.  But  if  a  statute  withhold  the  remedy  which  before 
existed  at  common  law,  the  common-law  right  ceases  to  exist.  * 

The  analogy  of  these  rules  holds  good  in  the  criminal  law. 
Thus,  where  an  offence  intended  to  "be  guarded  against  by  a 
statute,  is  punishable  before  the  making  of  any  statute  prescrib- 
ing a  particular  method  of  punishing  it,  then  such  particular 
remedy  is  merely  cumulative,  and  does  not  take  away  the 
former  remedy ;  but  where  the  statute  enacts  that  the  doing  of 
any  act  not  punishable  before  shall  for  the  future  be  punishable 
in  such  and  such  a  particular  manner,  there  it  is  necessary  that 
the  particular  method  prescribed  by  the  act  be  specifically  pur- 
sued, and  not  the  common-law  mode  of  an  indictment,  f 

It  has  been  said,  however,  to  be  a  clear  and  established  prin- 
ciple, that  when  a  new  offence  is  created  by  act  of  Parliament, 
and  a  penalty  is  annexed  to  it  by  a  separate  and  substantive 
clause,  it  is  not  necessary  for  the  prosecutor  to  sue  for  the  pen- 
alty, but  he  may  proceed  on  the  prior  clause,  upon  the  ground 
of  its  being  a  misdemeanor.  J 

It  is  no  objection  in  this  country  to  an  indictment  for  an 
offence  against  a  statute  of  a  State,  that  the  defendant  is  liable 
to  punishment  for  the  same  act  under  a  law  of  the  United 
States.  A  State  may  pass  laws  declaring  acts  criminal,  and 
may  punish  the  violation  of  the  law,  although  the  offender  may 
be  again  prosecuted  by  the  Federal  Government  for  violating 
her  laws  by  the  same  act  which  violated  the  law  of  the  State. 
In  other  words,  a  party  in  committing  a  wrongful  act,  may  by 
one  act  violate  the  laws  of  the  two  governments,  and  render 
himself  amenable  to  both.  | 

*  Gooch  y.  Stephenson,  13  Maine  ( 1  Shep-  would  not  lie  for  keeping  an  ale-house  without 

ley)  371.  a  license,  because  it  was  no  offence  at  com- 

f  By  Lord  Mansfield,  in  Rex  v.  Robinson,  mon  law,  and  the  statute  making  it  an  offence 

2  Burr.  799,  where  held  that  an  indictment  had  made  it  punishable  in  another  manner, 

would  lie  for  disobedience  to  a  filiation  order  See  Rex  v.  Robinson,  approved  in  Sturgeon 

of  the  quarter  sessions,  though  a  particular  v.  The  Staie,  1  Blackf.  Ind.  39. 

forfeiture  of  twenty  shillings  per  month  was  \  The  King  v.  Harris,  4  T.  R.  205.     See 

affixed  to  any  disobedience  of  the  statute  un-  this  case  cited  and  commented  on  in  the  Hart- 

der  which  the  order  was  made.     See  Castle's  ford  &  N.  H.  R.  R.  Co.  v.  Kennedy,  12  Conn. 

Case,  Cro.  Jac.  644.     In  Stephens  v.  Watson,  499,  527. 

1   Salk.  45,  it  was  held  that  an  indictment  ||  The  State  v.  Moore,  6  Indiana,  436. 


346  RETROACTIVE    EFFECT   OF    LAWS. 

Retroactive  Effect  of  Laws  (a). — We  have  already  spoken  * 
of  laws  in  this  aspect ;  and  we  have  stated  the  general  rules  to 

*  Ante,  p.  160,  et  set). 

(a)  Retrospective  Laws. — The  discussion  in  the  text  and  in  this  note  properly  be. 
longs  in  the  chapter  upon  state  constitutional  law,  and  falls  under  the  general  topic 
of  "  due  process  of  law,"  or  "  law  of  the  land."  Laws  in  relation  to  civil  matters 
which  act  retrospectively,  unless  they  impair  vested  rights  or  the  obligation  of  con- 
tracts, are  constitutional  and  valid  in  the  absence  of  any  peculiar  constitutional  pro- 
visions forbidding  them.  The  following  are  illustrations  of  such  statutes  which  have 
been  sustained :  A  law  taxing  capital  employed  in  trade  during  a  past  year.  Munic- 
ipality v.  Wheeler,  10  La.  Ann.  745  ;  New  Orleans  v.  Cordeviolle,  13  La.  Ann.  268 ; 
State  v.  Manhattan  &c.  Co.  4  Nev.  318;  and  see  "Taxation."  A  law  enlarging  a 
remedy  or  giving  a  new  one  for  an  existing  cause  of  action,  though  the  Legislature 
cannot  retrospectively  create  a  cause  of  action.  Coosa  R.  S.  Co.  v.  Barclay,  30  Ala. 
120;  Stokes  v.  Rodman,  5  R.  I.  405;  and  see  supra,  "Vested  Rights."  A  statute 
changing  joint  tenancies  into  tenancies  in  common,  was  held  in  New  Hampshire  not 
to  be  a  "retrospective  law"  in  the  sense  of  the  Constitution  of  that  State,  which  ex- 
pressly forbids  such  laws.  Stevenson  v.  Cofferin,  20  N.  H.  150  ;  but  that  such  a 
statute  is  retrospective,  see  Boston  &c.  Co.  v.  Condit,  4  C.  E.  Green,  394 ;  and  see 
"  Vested  Rights."  It  was  said  in  Ohio  that  retroactive  laws  are  constitutional 
"  where  they  violate  no  principle  of  natural  justice."  Butler  v.  Toledo,  5  Ohio,  N.  S. 
225,  231.  In.laying  down  this  criterion,  however,  the  Ohio  court  plainly  overlooked 
the  true  matter  of  inquiry,  and  confounded  two  entirely  different  subjects.  It  is,  in 
fact,  entirely  a  question  of  poicer,  whether  a  Legislature  may  pass  a  retroactive  law, 
and  not  a  question  of  expediency,  or  of  morality,  or  of  whether  such  laws  are  in  them- 
selves just.  The  doctrine  quoted  comes  to  this,  when  put  into  plain  English  :  The 
Legislature  may  pass  a  retroactive  law  when  such  a  law  is  right,  but  may  not  do  so 
when  such  a  law  is  wrong.  This  method  of  statement  shows  the  utter  absurdity  of 
the  supposed  rule.  It  is  this  constant  confusion  of  ideas,  especially  in  matters  relat- 
ing to  governmental  powers,  this  constant  confounding  of  "  powers"  with  the  method 
of  exercising  those  powers,  which  has  made  the  constitutional  law  such  a  mass  of 
contradictions,  and  has  obscured  the  plainest  principles.  Our  State  Legislatures  can- 
not pass  retroactive  laws  which  violate  certain  principles  of  "natural  justice,"  simply 
because  they  are  expressly  forbidden  to  do  so  in  certain  instances,  such  as  when 
vested  rights  would  be  invaded,  or  the  obligation  of  contracts  impaired  ;  but  there  is 
no  general  constitutional  limitation  or  restriction  which  shuts  up  the  Legislature  to 
the  passage  of  such  statutes  as  are  wise,  just,  equitable,  moral,  and  upright. 

After  an  act  has  been  construed  by  the  courts,  the  Legislature  cannot  expound  it 
differently  so  as  to  alter  vested  rights.  Gordon  v.  Ingraham,  1  Grant's  Cas.  152 ; 
West  Br.  B.  Co.  v.  Dodge,  31  Penn.  St.  285;  People  v.  Supervisors  &c.  16  N.  Y.  424; 
and  see  note  "  what  is  law,"  supra.  But  a  legislative  curing  of  irregularities,  though 
retrospective,  is  not  unconstitutional,  e.  <?.,  resolutions  of  a  city  council  not  properly 
approved  by  the  mayor,  may  be  validated.  State  v.  Newark,  3  Dutch.  185.  And 
the  want  of  a  stamp  on  a  contract  may  be  remedied,  and  the  stamp  act  having  been 
.repealed,  and  all  unstamped  contracts  declared  valid  by  the  Legislature,  it  is  the 
duty  of  an  appellate  court  to  reverse  the  decision  of  an  inferior  court  made  before  the 
repeal,  excluding  evidence  of  an  unstamped  contract.  State  v.  Norwood,  12  Md.  195. 
On  the  same  principle  a  statute  declaring  that  marriages  shall  not  be  impeached  or 


RETROACTIVE  EFFECT  OF  LAWS.  347 

"be,  that  retrospective  laws  which  conflict  with  a  State  Constitu- 
tion,* which  violate  the  provisions  of  the  Constitution  of  the 
United  States  by  impairing  the  inviolability  of  the  obligation 
of  contracts,  or  which  tend  to  divest  vested  rights  of  property, 
are  absolutely  void,  as  not  being  within  the  scope  of  the  legis- 
lative power ;  and  that  the  courts  will  always  struggle  to  give 
laws  a  prospective  construction  or  interpretation.  But  in  cases 
which  do  not  come  within  the  foregoing  exceptions,  it  is  in  the 
power  of  the  Legislature  to  pass  retroactive  laws ;  and  the  judi- 
ciary will  not  interfere  with  them.  The  question  is  of  so  much 
practical  importance,  that  the  following  decisions  ought  not  to 
be  overlooked. 

"  It  is  not  in  the  power  of  the  Legislature,"  says  the  Su- 
preme Court  of  Maryland,  "to  give  a  statute  a  retrospective 
operation,  so  as  to  divest  vested  rights  acquired  under  a  will."  f 
Says  the  Supreme  Court  of  Louisiana, — "  However  repugnant 
to  logic  and  sound  policy  retrospective  laws  may  be,  retrospect- 
ive laws  in  civil  matters  do  not  violate  the  Constitution  unless 

*  The  Constitution  of  Tennessee,  art.  xi,          f  Wilderman  v.  Mayor  and  City  Council 
§  20,  contains  a  positive  declaration,  "  That    of  Baltimore,  8  Maryland,  551. 
no  retrospective  law,  or  law  impairing  the 
obligation  of  contracts,  shall  be  made." 

questioned  collaterally  on  the  ground  of  insanity  or  idiocy,  is  valid  in  its  applica- 
tion to  past  marriages.  Goshen  v.  Richmond,  4  Allen,  458.  And  an  act  regulating 
legal  proceedings,  e.  g.,  competency  of  witnesses,  may  operate  retrospectively.  Rals- 
ton v.  Lothain,  18  Ind.  303.  It  was  also  held  in  Pennsylvania  that  a  statute  making 
uncontested  probates  final  after  five  years  from  their  dates,  and  allowing  two  years 
from  its  passage  to  contest  past  probates,  was  valid.  Kenyon  v.  Stewart,  44  Penn.  St. 
179.  The  Legislature  cannot,  however,  make  corporators  retrospectively  liable  for 
corporate  debts,  for  this  would  be  to  create  a  cause  of  action,  and  to  invade  vested 
rights  of  property.  Coffin  v.  Rich,  45  Me.  507. 

When  bridges  had  been  built  by  railroads  under  the  provisions  of  a  statute  requir- 
ing such  building  on  order  of  town  authorities,  but  imposing  no  liability  for  result- 
ing damage,  a  subsequent  statute  imposing  upon  the  railroads  a  liability  for  damages 
to  abuttors  from  such  bridges  already  built,  was  held  void  in  New  Hampshire  as 
being  in  violation  of  the  express  provision  of  the  State  Constitution  forbidding  retro- 
spective laws.  Towle  v.  Eastern  R.  R.  18  K  H.  547. 

A  statute  affecting  substantial  rights  will  not  be  construed  as  retrospective  unless 
the  intent  that  it  should  act  so  is  clear.  Kelley  v.  Kilso,  5  Ohio,  N.  S.  198  ;  and  see 
"  Retrospective  Laws,"  under  the  head  of  "  Construction  of  Statutes." 

The  existing  Constitutions  of  the  following  States  expressly  prohibit  retrospective 
or  retroactive  legislation  :  Louisiana,  art.  vi,  §  110;  Missouri,  art.  i,  §  28;  New  Hamp- 
shire, pt.  i,  art.  23 ;  Tennessee,  art.  i,  §  20 ;  Texas,  art.  i,  §  14. 


348  RETROACTIVE  EFFECT  OF   LAWS. 

they  tend  to  divest  vested  rights,  or  to  impair  the  obligation  of 
contracts.* 

In  Pennsylvania,  it  has  been  held  that  no  statute  should  be 
held  to  operate  retrospectively,  unless  its  language  admits  of  no 
other  construction;  and  so  it  was  decided  that  the  act  of  26th 
of  April,  1850,  in  regard  to  the  lien  of  judgments  on  the  estates 
of  decedents,  was  not  retrospective,  f 

In  Michigan,  this  language  has  been  held :  "  In  these  United 
States,  it  is  said  that  in  a  private  case  between  individuals,  the 
court  will  struggle  hard  against  a  construction  which,  by  a  re- 
troactive operation,  will  affect  the  rights  of  parties ;  and  statutes 
are  generally  to  be  construed  to  operate  in  future,  unless  a  re- 
trospective effect  be  clearly  intended ;  "  but  the  mere  fact  of  a 
statute  being  clearly  retrospective  does  not  of  itself  make  it  un- 
constitutional. J 

In  Connecticut,  an  act  authorizing  a  sale  by  the  courts  of 
equity  of  real  estate,  and  of  any  rights  corporeal  or  incorporeal 
existing  or  growing  out  of  the  same,  which  are  held  in  joint 
tenancy  or  coparcenary,  whenever  partition  cannot  be  made  in 
any  other  way,  has  been  held  "  not  to  be  retroactive  within  the 
legal  import  of  that  term,  but  to  be  purely  a  remedial  law  act- 
ing upon  existing  rights,  and  providing  a  remedy  for  existing 
evils ; "  and  it  was  added,  "  if  this  were  in  fact  a  retroactive  law 
it  would  not  for  such  reason  be  an  unconstitutional  one."  || 

•  In  Massachusetts,  where  a  statute  was  passed  giving  towns 
a  remedy  against  paupers  for  expenses  incurred  for  their  sup- 
port, it  was  held  that,  as  prior  to  the  act  no  such  suit  could  be 
maintained,  the  act  must  be  construed  to  have  a  prospective 
operation  only,  on  the  ground  that  the  Legislature  could  not 
have  entertained  the  opinion  that  a  citizen  free  from  debt  by  the 
laws  of  the  land,  could  be  made  a  debtor  merely  by  a  legislative 
act  declaring  him  one.1]"     • 

The  subject  of  the  retroactive  effect  of  statutes  constantly 

*  Municipality  No.  1  v.  "Wheeler,  10  La.  lateur  peut  porter  vine  dispositi on  retroactive; 
Ann.  R.  745,  746.     And  the  court  cites  Mar-  et  toute  irrationnelle  que  sera  cette  disposi- 
(jade",  §  62:    "Mais    enfin,  tant  qu'une   loi  tion,  elle  n'en  devra  pas  moins  s'appliquer." 
existe,    si    mauvaise,  si  peu  logique  qu'elle          \  NefFs  Appeal,  21  Penn.  243. 

puisse  etre  sous  tel  ou  tel  rapport,  le  pouvoir          ±  Scott  v.  Smart's  Exrs.  1  Mich.  295. 
judiciaire  ne  peut  pas  ne  point  1'appliquer.  |[  Richardson  v.  Muryson,  23  Conn.  94. 

Dura  lex,  zed  est  lex.     En  fait,  done,  le  legis-          *j[  Medford  v.  Learned,  16  Mass.  216. 


RETROACTIVE   EFFECT  OF   LAWS.  349 

presents  itself  in  connection  with  the  subject  of  vested  rights 
and  their  immunity  from  legislative  interference.  We  have  al- 
ready *  considered  the  difficulty  of  drawing  a  line  between  those 
vested  rights  that  are  absolutely  sacred,  and  those  held  to  be 
under  the  control  of  the  Legislature.  The  subject  is  of  vast  im- 
portance in  reference  to  the  daily  exercise  of  legislative  power ; 
but  until  some  clear  and  settled  rules  are  declared  by  authority, 
we  can  only  hope  to  arrive  at  an  approximation  to  correct  prin- 
ciples by  a  careful  examination  of  the  adjudged  cases. 

In  Ohio,  it  has  been  held  that  a  retrospective  act  passed  in 
March,  1835,  to  render  valid  previous  conveyances  by  married 
women,  which  were  then  void  as  not  complying  with  a  statute 
of  1820,  is  an  unauthorized  exercise  of  legislative  power,  and  as 
such  null — ^n  the  ground  that  the  act  divested  married  wo- 
men of  their  property,  without  consent,  without  compensation, 
and  not  for  crime,  f 

A  Pennsylvania  act  of  Assembly,  declaring  the  children  of 
a  particular  bastard  child  "  able  and  capable "  to  inherit  and 
transmit  the  estate  of  the  deceased  mother  of  the  bastard  as 
fully  as  if  the  bastard  had  been  born  in  wedlock,  has  been  con- 
strued not  to  divest  real  estate  which  had  previously  passed  by 
descent  from  the  mother  to  her  brother,  so  as  to  vest  it  in  the 
children  of  the  deceased  bastard.  Such  a  construction  would 
be  in  hostility  to  the  rule  of  the  common  law,  that  a  bastard 
cannot  inherit ;  if  construed  retrospectively,  the  act  would  di- 
vest vested  rights,  and  be  in  direct  hostility  to  the  provision  of 
the  bill  of  rights  of  the  State,  which  declares  that  no  citizen 
shall  be  deprived  of  his  property,  unless  by  the  law  of  the 
land.J 

Prior  to  1848,  the  courts  of  Pennsylvania  had  decided  that 
a  testator's  mark  to  his  name  at  the  foot  of  a  testamentary  paper, 
but  without  proof  that  the  name  was  written  by  his  express  di- 
rection, was  not  a  valid  signature  under  their  statute  of  wills  of 
1833.  To  overrule  this,  an  act  was  passed  in  1848,  directing, 
that  every  will  theretofore  made,  or  thereafter  to  be  made,  to 
which  the  testator  had  made  his  mark,  except  such  as  might 

*  Ante,  p.  152.  394.     So  as  to  defective  re'eases  of  dower. 

f  The  Lessee  of  Good  v.  Zerclier,  12  Ohio,     Russell  v.  Rumsey,  35  111.  362. 

t  Norman  v.  Heist,  5  Watts  &  Per.  171. 


350  RETROACTIVE    EFFECT   OF   LAWS. 

have  been  finally  adjudicated  prior  to  the  passage  of  the  act, 
should  "be  valid.  A  question  arose  as  to  the  applicability  of 
the  act  to  a  will  executed  in  1840;  and  the  court  held  that  the 
act  of  1848,  if  retroactive,  was  an  exercise  of  judicial  power  in 
settling  a  question  of  interpretation,  and  as  such  was  void ;  and 
moreover,  if  construed  retroactively,  it  was  void  on  the  further 
ground  that  it  violated  the  constitutional  provision  giving  to 
property  the  protection  of  the  law  of  the  laud;  they  conse- 
quently held  that  the  act  was  merely  prospective  in  its  opera- 
tion.* 

The  subject  of  the  retroactive  effect  of  statutes  with  reference 
to  vested  rights,  has  been  examined  in  a  very  interesting  case 
in  Maryland.  Suit  was  brought  in  1 846  on  a  single  bill  exe- 
cuted by  the  defendant  in  1840.  The  defendant  pleaded  that 
the  note  was  usurious  and  void,  under  an  act  of  1 704.  The 
plaintiff  replied  a  statute  passed  on  the  10th  of  March,  1846, 
declaring  substantially  that  in  any  suit  or  action  thereafter  to 
be  brought  in  any  court  of  law  or  equity  upon  any  contract,  the 
plaintiff  should  be  at  liberty  to  recover  the  principal  and  legal 
interest.  It  was  insisted  on  behalf  of  the  defendant,  that  the 
act  of  1846  should  not  be  construed  retrospectively;  that  if  re- 
trospective, it  was  unconstitutional,  or  beyond  the  sphere  of 
legislative  power,  so  far  as  operating  on  existing  contracts,  upon 
the  ground  that  it  divested  the  vested  right  of  pleading  usury 
as  it  existed  before  the  act  of  1846. 

But  the  act  was  held  valid.  The  court  admitted  the  rule 
to  be  that  an  act  is  to  be  construed  as  prospective  in  its  opera- 
tion in  all  cases  susceptible  of  doubt ;  but  held  that  this  could 
have  no  application  to  a  case  where  the  Legislature  had  di- 
rected, in  a  language  too  express  and  plain  to  be  mistaken,  that 
they  designed  to  give  the  statute  a  retroactive  operation, 
— that  in  such  a  case  there  was  no  room  for  interpretation^ 
The  objection  as  to  the  unconstitutionality  of  the  law  was  also 
overruled,  on  the  ground  that  it  was  obvious  that  no  provision 
of  the  Constitution  of  the  United  States  was  violated ;  J  and  as 

*  Greenough  v.  Greenough,  11  Penn.  489.  f  See  also  on  this  point  Goshen  v.  Ston- 

See  C.  J.  Gibson's  interesting  opinion   and    nington,  4  Conn.  220. 

cases  cited.  \  Satterlee  v.  Mathewson,  2  Peters,  413; 

Watson  v.  Mercer,  8  Peters  110. 


RETROACTIVE   EFFECT  OF  LAWS.  351 

to  the  provision  in  the  Maryland  Bill  of  Eights,  art.  15,  declar- 
ing "  retrospective  laws  punishing  acts  committed  before  the  ex- 
istence of  such  laws,  to  be  oppressive  and  unjust,"  that  it  re- 
lated solely  to  retrospective  criminal  laws,  and  was  an  express 
recognition  of  the  legislative  power  to  pass  retrospective  laws 
in  regard  to  civil  cases  and  contracts,  as  laws  healing  imperfect 
deeds  or  validating  defective  acknowledgments.  The  objection 
that  the  right  to  plead  usury  under  the  act  of  1704  was  a 
vested  right,  and  that  the  act  of  1846  was  void  as  tending  to 
divest  it,  shared  a  similar  fate.  The  court  admitted  the  sacred - 
ness  of  vested  rights,  and  declared  that  an  act  which  divested 
a  right  under  the  pretense  of  regulating  the  remedy  was  as  ob- 
jectionable as  if  aimed  at  the  right  itself.  But  they  held  that 
when  vested  rights  were  spoken  of  as  being  guarded  against 
legislative  interference,  they  were  those  rights  to  which  a  party 
may  adhere,  and  upon  which  he  may  insist,  without  violating 
any  principle  of  morality.  They  held  that  the  borrower  had 
no  moral  right  to  repudiate  his  contract  so  as  to  escape  the  pay- 
ment of  the  sum  actually  received,  and  that  the  act  in  question 
was  no  more  than  an  exercise  of  legislative  authority  on  the 
subject  of  remedies,  a  power  which  the  Legislature  might  exer- 
cise in  relation  to  past  as  well  as  future  contracts.* 

A  New  York  act  of  1850,  chap.  172,  declares,  that  "no  cor- 
poration shall  hereafter  interpose  the  defence  of  usury  "  in  any 
action.  It  has  been  said  that  this  is  in  the  nature  of  a  penalty 
or  forfeiture  remitted  by  the  Legislature ;  and  held,  that  the 
act  was  applicable  to  an  equity  case  where  the  defence  was  set 
up,  and  the  proofs  taken  and  closed,  before  the  .act  was  passed.f 
The  defence  of  usury  is  so  odious  in  all  highly  civilized  and 
especially  in  all  commercial  communities,  that  it  is  very  difficult 
to  obtain  for  it  an  impartial  hearing ;  but  as  long  as  the  prohi- 
bition stands  on  the  statute  book,  it  certainly  is  the  duty  of  the 
judiciary  fairly  to  cany  out  the  legislative  will ;  and  I  cannot 
understand  how  an  act  can  be  considered  within  the  just  limits 
of  the  legislative  power,  nor  how  it  can  be  regarded  otherwise 
than  as  an  invasion  of  the  judicial  prerogative,  which  by  a 

*  Baugher  v.-Nelson,  9  Gill,  299.     The          f  Curtis  v.  Leavitt,  IT  Barb.  311. 
case  is  indexed  as  Grinder  v.  Nelson. 


352  RETEOACTIVE    EFFECT   OF   LAWS. 

sweeping  change  of  the  law,  not  only  affects  the  interests  of 
parties  .litigant,  but  absolutely  controls  the  determination  of 
suits  at  the  time  of  its  passage  pending  for  decision  in  the 
proper  forum.  If  the  Legislature  has  this  power,  it  is  very  ob- 
vious that  a  valid  law  might  be  framed  general  in  its  terms,  but 
really  intended  to  effect  private  objects,  and  calculated  to  work 
the  grossest  injustice. 

In  connection  with  this  subject,  the  following  case  in  New 
York  is  important :  Clark  and  Cornell,  commissioners  of  high- 
ways in  a  town,  by  direction  of  the  voters  of  the  town  sued  a 
a  turnpike  company ;  they  were  unsuccessful,  and  obliged  to 
pay  costs.     These   costs   the  town  refused  to  pay.     The  com- 
missioners then  sued  the  town ;    and  the  court  of  last  resort 
held  that  they  had  no  remedy.     The  Legislature  then  (1851) 
passed  an  act  directing  the  question,  whether  the  commissioners 
should  be  paid  or  not,  to  be  submitted  at  the  next  meeting  of 
the  voters  of  the  town.     The  voters  decided  that  they  would 
not  tax  themselves  for  the  purpose.     The  Legislature  was  then 
again  appealed  to;    and  in  1852  a  law  was  passed,  appointing 
three  commissioners  to  determine  the  amount  of  costs,  <fec.,  due 
Clark  and  Cornell,  to  make  an  award  thereof ;  and  declaring  it 
the  duty  of  the  supervisors  of  Chenango  county,  in  which  the 
town  was  situated,  to  apportion  the  amount  upon  the  taxable 
propei'ty  of  the  town,  and  to  provide  for  its  collection  like  other 
taxes.     Suit  was  brought  by  the  town  against  the  supervisors, 
to  restrain  the  levy  of  the  tax,  on  the  ground  of  its  being  un- 
constitutional, as  infringing  the  vested  rights  of  the  tax  payers 
of  the  town.     But  the  law  was  sustained,  as  a  mere  exercise  of 
the  power  of  taxation,  and  on  the  ground  that  the  act  of  1851 
was  not  in  the  nature  of  a  contract,  nor  judicial  in  its  character. 
Perhaps  the  decision  maybe  sustained  on  the  grounds  on  which 
it  is  put ;   but  it  is  obvious  that  the  result  of  the  matter  is  that 
the  Legislature  compels  payment  out  of  the  pockets  of  the  defend- 
ants of  a  claim  which  the  law  had  already  pronounced  they 
were  not  bound  to  pay.     Clark  and  Cornell  were  the  agents 
of  the  town.     They  present  to  their  principals  a  claim  which  is 
rejected  and  contested.     The  courts  decide  that  the  principal  is 
not  liable.     The  Legislature   then  steps  in,  and  in  effect  com- 


THE  MORE  RECENT  STATUTE  CONTROLS.  353 

pels  the  payment  of  the  claim  by  the  defendants.  This  may  be 
called  taxation,  but  in  truth  it  is  the  reversal  of  a  judicial  de- 
cision.* The  power  of  taxation  is  a  great  governmental  attribute, 
with  which  the  courts  have  very  wisely,  as  we  shall  hereafter 
see,  shown  extreme  unwillingness  to  interfere ;  but  if  abused, 
the  abuse  should  share  the  fate  of  all  other  usurpations. 

In  England,  on  the  subject  of  retrospective  statutes,  it  has 
been  held,  that  an  act  in  regard  to  practice — declaring  that 
when  a  new  trial  was  granted  on  the  ground  that  the  verdict 
was  against  evidence,  the  costs  of  the  first  suit  should  abide  the 
event,  unless  the  court  should  otherwise  order — was  retroactive ; 
but  a  clause  in  the  same  act,  that  error  might  be  brought  upon 
a  special  case  unless  the  parties  agreed  to  the  contrary,  was  held 
not  to  be  so ;  and  Maule,  J.,  said,  "  As  a  general  rule  an  act  is 
to  be  construed  so  as  to  be  prospective  only;  for  if  it  were 
otherwise  construed,  it  would  often  defeat  the  intention  of  the 
parties  who  acted  under  the  old  law."  f 

Last  Statute  in  Point  of  Time  Controls. — We  have  already^ 
had  occasion  to  remark,  that  importance  is  attached  to  the  time 
of  the  expression  of  the  will  of  the  Legislature.  So,  if  two 
statutes  repugnant  to  each  other  be  passed  in  the  same  session, 
the  latter  only  shall  have  effect.  So  again  it  is  said,  if  the 
latter  part  of  a  statute  be  repugnant  to  the  former  part  thereof 
it  shall  stand,  and  so  far  as  it  is  repugnant  be  a  repeal  of  the 
former  part ;  because  it  was  last  agreed  to  by  the  makers  of 
the  statute. If  And  this  principle  has  been  declared  by  the  Su- 
preme Court  of  the  State  of  New  York.**  So  in  Kentucky  it 
has  been  said,  "  If  there  be  an  absolute  inconsistency  between 
these  statutes,  the  act  of  1825  being  posterior  in  date,  and  also 
more  comprehensive  in  its  terms,  must  have  superseded  the 
other  so  far  as  they  conflicted."  ff  So  in  Pennsylvania  it  has 
been  said,  that  in  cases  of  irreconcilable  repugnancy  the  rule  is 
to  let  the  last  part  determine  the  intentions  of  the  lawgiver. JJ 

*  Town    of    Guilford  v.    Supervisors   of          T[  Bacon,  Abr.  Stat.  D. 
Chenango  Co.  3  Kernan,  147.  **  Harington  v.  Trustees  of  Rochester,  10 

f  Hughes  v.   Lumley,  4  Ellis  &  Blackb.  Wend.  547. 

358,  359;    Jenkins  v.  Betham,   15  C.  B.  169          ff  Naz.  Lit.  &  Benev.  Inst.  v.  Common- 

and  190.  wealth,  14  B.  Monroe,  266. 

\  Ante,  pp.  48,  49,  65,  107.  \\  Packer  v.  Sunbury  &  Erie  R.  R,  Co.  7 

1  Bacon,  Abr.  Stat.  D.  Harris  (Penn.)  R.  211. 

23 


354  MISDESCRIPTIOX  AND   SURPLUSAGE. 

But  it  is  only  in  cases  of  irreconcilable  repugnancy  that 
this  rule  applies ;  it  gives  way  to  the  fundamental  principle, 
that  the  intention  of  the  Legislature  is  to  govern.  "  A  subse- 
quent statute,"  says  Parsons,  C.  J.,  "  generally  will  control  the 
provisions  of  former  statutes,  which  are  repugnant  to  it  accord- 
ing to  its  strict  letter.  But  there  are  exceptions  to  this  rule, 
depending  on  the  construction  of  the  last  statute  agreeably  to 
the  intention  of  the  Legislature."  *  (a)  "  The  general  rule  is 
conceded  to  be,"  it  has  been  said  in  Pennsylvania,  "  that  where 
two  statutes  contain  repugnant  provisions,  the  one  last  signed 
by  the  governor  is  a  repeal  of  one  previously  signed.  But  this 
is  so  merely  because  it  is  presumed  to  be  so  intended  by  the 
law-making  power.  Where  the  intention  is  otherwise,  and  that 
intention  is  manifest  upon  the  face  of  either  enactment,  the 
plain  meaning  of  the  legislative  power  thus  manifested  is  the 
paramount  rule  of  construction.  It  is  no  part  of  the  duty  of 
the  judiciary  to  resort  to  technical  subtleties  to  defeat  the  ob- 
vious purposes  of  the  legislative  power  in  a  matter  over  which 
that  power  has  a  constitutional  right  to  control."  f 

Misdescription  and  Surplusage. — The  maxim,  Falsa  demon- 
Mratio  non  nocet,  applies  to  statutes  as  well  as  in  other  cases.  (J) 

*  Pease  v.  "Whitney  et  al.  5  Mass.  380,  382.     wealth,   26  Pennsylvania  Reports,  pp.   448, 
f  The  Southwark  Bank  v.  The  Common-    449. 

(a)  Thus,  when  a  statute  appropriated  a  sum  granted  to  the  State  by  Congress  to 
the  redemption  of  certain  bonds,  and  a  subsequent  statute  made   an   appropriation 
which  if  fully  carried  out  would  interfere  with  the  first,  the  second  act  was  held  to 
apply  only  to  the  surplus  of  the  fund  after  redeeming  the  bonds  as  provided  for  by 
the  former  act.     State  v.  Bishop,  41  Mo.  16. 

(b)  Mistake  and  False  Description. — An   amendatory  statute    referring    to    the 
amended  act  by  its  date  and  by  its  subject-matter,  and  the  reference  to  the  date 
being  wrong,  the  other  reference,  if  it  identifies  the  statute  to  be  amended,  is  suf- 
ficient.   Madison  &c.  PI.  R.  v.  Reynolds,  3  Wise.  287,  and  see  Blake  v.  Brackett,  47 
Me.  28.     If  a  clerical  or  typographical  error  is  manifest,  e.  g.,  "  penal"  for  "final," 
the  correction  will  be  made  in  construction.     Moody  v.  Stephenson,  1  Minn.  401  ; 
Jocelyn  v.  Barrett,  18  Ind.  128  ;  Nazro  v.  Merchants'  Ins.  Co.  14  Wise.  295.     Where 
the  language  was  that  a  person  convicted  of  a  certain  crime  should  be  "imprisoned 
in  the  penitentiary  not  less  than  two,  nor  more  than  five  years,  or  by  fine  and  im- 
prisonment, one  or  both  at  the  discretion  of  the  jury  trying  the  same,"  it  was  held 
that  the  words  "  be  punished  "  must  be  supplied  between  the  word  "  or"  and  "  by 
fine."    Turner  y.  State,  40  Ala.  21.     The  word  "article  "  in  an  amendatory  statute 
was  read  "  chapter  "  in  Gibson  v.  Belcher,  1  Bush  (Ky.)  145.     A  clerical  error  in  the 
title  made   in   engrossing  the  bill  after  its  passage,  but  before  its  approval  by  the 


CAUSE   AND   EFFECT.  355 

It  was  early  held  that,  in  an  act  of  Parliament,  the  misnomer 
of  a  corporation  where  the  express  intention  appears  shall  not 
avoid  the  act,  any  more  than  in  a  will,  when  the  true  corpora- 
tion intended  is  apparent.*  So,  where  a  statute  is  referred  to 
by  general  descriptive  particulars,  some  of  which  are  manifestly 
false  and  others  true,  the  former  may  be  rejected  as  surplusage, 
provided  the  remainder  is  sufficient  to  show  clearly  what  is 
meant,  f  Thus  again,  where  a  statute  referred  to  the  vote  of  a 
town  by  a  wrong  date,  where  the  reference  would  have  been 
good  without  any  date  at  all,  it  was  held  that  the  erroneous 
date  might  be  rejected  as  surplusage. £ 

Connection  between  Cause  and  Effect. — The  relation  of 
cause  and  effect  sometimes  presents  itself  in  regard  to  the  con- 
struction of  statutes ;  and  here  we  find  a  class  of  questions 
analogous  to  those  growing  out  of  the  subject  of  remoteness  or 
consequentially  of  damages,  and  dependent  on  the  maxim 
proximo,  causa  non  remota  spectatur.\  So,  where  the  embargo 
act  of  22d  December,  1807,  required  a  bond  conditioned  to  re- 
land  certain  goods  in  some  port  of  the  United  States,  "  the  dan- 
gers of  the  seas  only  excepted,"  it  was  held  by  the  Supreme 
Court  of  the  United  States,  where  a  vessel  was  driven  b*y  stress 
of  weather  into  one  of  the  West  Indies,  and  there  detained  by  the 

*  The   Chancellor   of  Oxford's   Case,    10          i  Shrewsbury  v.  Boylston,  1  Pick.  108. 
Rep.  57.  I  Sedgwick  on  the  Measure  of  Damages, 

f  The   Watervliet    Turnpike   Co.   v.  Me-  chap.  iii. 
Kean,  6  Hill,  616. 

governer,  will  not  invalidate  the  act,  provided  the  act  as  a  whole  on  inspection  will 
not  mislead.  People  v.  Onandaga,  16  Mich.  254,  Cooley,  J.,  dissenting.  When  the 
context  is  plain  and  the  meaning  requires  it,  words  may  be  transposed.  Matthews 
y.  Commonwealth,  18  Gratt.  989.  A  clause  clearly  inserted  from  inadvertence  will 
be  disregarded.  Pond  v.  Maddox,  38  Cal.  572.  When  there  clearly  was  some 
mistake  which  might  be  one  or  the  other  of  two  possible  ones,  and  the  only  question 
was  which  of  the  two  had  probably  been  made, — that  is,  which  of  the  two  possible 
corrections  should  be  made, — the  court  held  that  the  mistake  least  likely  to  have 
been  detected — the  one  most  latent — was  the  one  made.  Jenks  v.  Langdon,  21 
Ohio,  N.  8.  362.  A  statute  providing  for  indictment  "  on  conviction  "  of  bribery, 
the  words  "  on  conviction  "  were  rejected  as  surplusag"'.  U.  S.  v.  Stern,  5  Blatch. 
C.  C.  512. 

Falsa,  Demonstratio. — See  State  v.  King,  28  Cal.  265  (reference  to  the  wrong  sec- 
tion); Chambers  v.  State,  25  Tex.  307  ("  pro-visions  to  art.  411,"  for  "proviso  to  art. 
411  ");  State  v.  Orange,  3  Vroom,  49  (mistake  in  description  of  a  street  in  the  ordi- 
nance for  laying  it  out) ;  Commonwealth  v.  Marshall,  69  Penn.  St.  328  (mistake  in  the 
date  of  an  ordinance  sought  to  be  validated) ;  and  see  People  v.  Clute,  63  Barb.  356. 


356  COMPUTATION  OF  TB1E. 

government  of  the  island,  that  this  was  a  casualty  within  the  ex- 
ception ;  the  court  saying,  "  an  effect  which  proceeds  inevitably 
and  of  absolute  necessity  from  a  specified  cause,  must  be  ascribed 
to  that  cause." ' 

In  Pennsylvania  it  is  provided  by  statute  (act  of  22d  April, 
1846),  that  when  money  is  collected  on  a  recognizance  given 
for  the  appearance  of  a  person  charged  with  a  criminal  offence, 
it  shall  be  applied,  after  payment  of  costs  and  expense,  to 
satisfy  the  damages  sustained  by  any  person  by  reason  of  the 
misderr  eanor.  A  party  being  indicted  for  keeping  a  gambling- 
house,  and  his  recognizance  being  forfeited,  a  person  who  lost 
money  at  play  in  the  house  claimed  a  part  of  the  moneys  col- 
lected on  the  recognizance ;  but  he  was  held  not  to  be  so 
entitled,  on  the  ground,  among  others,  that  his  misfortune  was 
not  the  natural  consequence  of  the  misconduct  of  the  keeper 
of  the  gambling-house ;  "  the  direct  and  immediate  cause  of  the 
loss,  was  his  own  inexcusable  folly."  f 

Computation  of  Time, — Where  the  computation  of  time,  as 
prescribed  in  statutory  enactments,  is  to  be  made  from  an  act 
done,  much  controversy  has  taken  place  as  to  whether  the  first 
day — that  on  which  the  act  is  done,  that  on  or  from  which 
time  is  to  begin  to  run — is  to  be  included  in  the  reckoning. (a) 
The  earlier  English  decisions  included  that  day.J  But  in  New 
York  from  an  early  period,  it  was  decided  to  exclude  the  day 
on  which  the  act  is  done,  and  the  same  rule  applies  to  notices ; 

*  The  United  States  v.  Hall,  6  Cranch,  Castle  T.  Burditt,  3  T.  R.  623;  Glassington 

171,  178.  v.  Rawlins,  3  East,  407.  In  Lester  v.  Garland, 

f  Commonwealth  v.  Bobbins,  26  Penn.  however,  15  Ves.  248,  the  day  was  excluded, 

165,  167.  and  it  was  intimated  that  no  general  rule  ex- 

\  The    King  v.   Adderley,    Doug.    463 ;  isted. 

(«)  Where  the  governor  had  ten  days  to  retain  bills,  it  was  held  exclusive  of  the 
first  and  inclusive  of  the  last,  the  period  being  a  time  given  him  for  deliberation  ; 
otherwise  in  contracts,  if  necessary  to  carry  out  the  intent,  for  there  the  first  day 
njay  be  included.  Price  v.  Whitman,  8  Cal.  412;  Iron  Man.  Co.  v.  Haight,  39  Cal. 
540.  That  the  day  the  bill  is  presented,  and  also  Sundays,  are  to  be  excluded,  sea 
also  People  v.  Hatch,  33  111.  9  ;  but  see  opinion  of  the  justices,  45  N.  H.  607.  By 
statute,'  bills  were  to  be  presented  to  the  governor  "  one  day  previous  "  to  ad- 
journment, held,  that  at  least  twenty-four  hours  were  necessary.  Hyde  v.  White,  24 
Tex.  137.  4 

The  usual  rule  in  construing  statutes  as  to  computation  of  time  is  to  include  the 
first  and  exclude  the  last.  Commonwealth  v.  Maxwell,  27  Penn.  St.  444.  "  Months  " 
are  to  be  taken  to  be  calender  months.  Gross  v.  Fowler,  21  Cal.  892. 


COMPUTATION  OF  TIME.  357 

and  such  is,  I  believe,  now  the  English  rule.*  In  New  York, 
it  has  been  said,  that  "  in  questions  of  the  computation  of  time 
arising  under  our  own  rules,  our  statutes,  and  upon  promissory 
notes,  the  day  of  the  date  is  excluded."  f  In  the  same  State, 
where  a  statute  requires  fourteen  days,  notice  of  trial,  fourteen 
days  are  required  exclusive  of  the  first  day  of  the  court.  J  And 
in  the  same  State,  the  day  on  which  the  Revised  Statutes  took 
effect  was  excluded,  in  computing  the  time  in  regard  to  the 
statute  of  limitations. 

In  Alabama,  it  has  been  held  that,  in  the  computation  of 
time  from  an  act  done,  the  day  of  performance  is  to  be  excluded ; 
the  court  saying  that  the  law  refuses  to  recognize  the  parts  or 
fractions  of  a  day.  So,  where  a  statute  provided  that  the  lien 
acquired  by  an  execution  should  not  be  lost  if  an  alias  execu- 
tion should  issue  without  interval  of  more  than  ninety  days, 
an  original  execution  was  returned  on  the  14th  of  April,  and 
an  alias  issued  on  the  14th  July  next  thereafter,  or  on  the 
ninety-first  day,  held  that 'the  lien  was  not  lost  ;^f  the  court 
saying  that  the  statute  must  be  construed  as  if  it  had  said  that 
the  lien  should  not  be  lost  if  an  execution  issued  to  the  sheriff 
without  interval  of  more  days  than  ninety  days.  But  this  rule 
as  to  disregarding  fractions  of  a  day,  does  not  apply  to  statutes 
which,  as  between  different  acts,  give  a  preference  or  priority  to  the 
one  which  is  first  done.**  In  the  same  State  it  is  said  to  be  the 
practice  of  the  courts  in  the  computation  of  time,  to  include 
one  day  and  exclude  the  other,  except  where  the  -statute  re- 
quires specially  a  given  number  of  entire  days  to  intervene,  in 
which  case  both  are  excluded.f  f 

*3  Chit.  Practice,   109;  Pitt  v.  Shew,  4  R.    18;    Ryman    v.   Clark,  4    Blackf.    329; 

Barn.  &  Aid.  208  ;  ex  parte  Dean,   2  Cowen,  Jacobs  v.  Graham,  1  Ibid.  392 ;  Arnold  v.  The 

605;  Jackson  v.  Van  Valkenburgh,  8  Cowen,  TJ.   States,   9  Cranch,   104;  Pierpont  v.  Gra- 

260 ;  Comml.  Bank  of  Oswego  v.  Ives,  2  Hill,  ham,  4  Wash.  C.  C.  R.  232  ;  Cornell  v.  Moul- 

356;  Homan  v.  Liswell,  6  Cowen,  659  ;  Co-  ton,  3  Denio,  12. 

lumbia  Turnpike  Road  v.  Haywood,  10  Wend.  f  Wilcox  v.   Wood,   9  Wend.    348,    per 

422.     See   Small  T.   Edrick,   5   Wend.  137,  Savage  C.  J. 

where  a  contrary  construction  was  given  to          \  Columbia  Turnpike  Road  v.   Haywood, 

peculiar     phraseology.       Comml.     "Bank    of  10  Wend.  422. 

Oswego  v.  Ives,  2  Hill,  355.     The  decisions  in  ||  Fairbanks  v.  Wood,  17  Wend.  329. 

the  other  States  do  not  seem  uniform.     Sims          *|[  Lang  v.  Philips,  27  Ala.  311 ;  Judd  v. 

v.  Hampton,   1  S.  &  R.  411 ;  Portland  Bank  Fulton,  10  Barb.  117. 
v.   Maine  Bank,  11  Mass.  204;  Presbrey  v.  **  Lang  v.  Philips,  27  Ala.  311. 

Williams,  15  Ibid.  193;  Bigelow  v.  Willson,          ff  Owen  v.  Slater  et  al.  26  Ala.  547.    See, 

1  Pick.  485  ;  Commonwealth  v.  Keniston,  5  in  N.  Y.  Fairbanks  v.  Woods,  17  Wend.  329 ; 

Pick.  420;  Hampton  v.  Erenzeller,  2  Browne's  Snyder  v.  Warren,  2  Cow.  518. 


358  COMPUTATION  OF   TIME. 

When  the  last  day  for  the  performance  of  a  given  act  falls 
on  a  Sunday,  the  act  must  be  done  on  the  preceding  day.* 

It  was  early  settled  in  England,  that  in  all  acts  of  Parlia- 
ment where  "  months  "  were  spoken  of  without  the  word  "  cal- 
endar," and  nothing  added  from  which  a  clear  inference  could 
be  drawn  that  the  Legislature  intended  calendar  months,  they 
should  be  understood  to  mean  lunar  months,  or  a  month  of 
twenty-eight  days.f  Lord  Kenyon  regretted  this ;  but  the  rule 
was  early  adopted,  though  with  equal  reluctance,  in  New 
York.  "  The  courts,"  it  was  said  in  one  case,  "  have  taken  the 
rule  as  they  found  it  settled,  that  where  there  is  nothing  in  a 
statute  from  which  they  can  infer  that  calendar  time  was  in- 
tended, the  month  must  be  considered  a  lunar  one."  But  as 
the  Legislature  never  in  fact  intended  a  lunar  month,  the  courts 
have  relied  on  any  circumstances  inducing  the  belief,  that  cal- 
endar time  was  in  fact  in  their  contemplation,^  All  doubt  has 
now  been  removed  in  New  York,  by  a  statutory  provision,  | 
which  declares,  that  wherever  the  word  month  is  used  in  a 
statute,  it  shall  mean  a  calendar  month.  In  Massachusetts  and 
Pennsylvania,  the  rule  appears  to  be,  that  where  the  word 
month  is  used  generally  in  a  statute  or  contract,  it  will  be  con- 
sidered to  mean  a  calendar  month.^f 

A  year  is  the  time  in  which  the  sun  completes  his  circuit 
through  the  twelve  signs  of  the  zodiac,  viz.,  365  days  and  about 
six  hours ;  but  in  leap-year,  the  statute  24  Geo.  II,  c.  25,  enacts 
that  the  year  shall  consist  of  366  days,  the  intercalary  day 
being  accounted  with  the  day  preceding  it  as  one  day ;  and  in 
New  York,  the  same  provision  has  been  adopted.** 

Waiver. — Under  this  head  we  have  already  noticed  the 
general  rule  ff  that  statutory  provisions  designed  for  the  benefit 

*  Broome  v.  Wellington,  1' Sandf.  Sup.  Ct.  three  cases  the  statute  was  interpreted  to 

Rep.  664 ;    ex  parte  Dodge,  7  Cowen,   147 ;  mean  calendar  months.     See  also  Jackson  v. 

Anon.  2  Hill,  376.  Van  Valkenburgh,  8  Cow.  260. 

f  Bishop  of  Peterborough  v.  Catesby,  Cro.  \  1  R.  S.  606.  §  4. 

Jac.  167,  168;  Barksdale  v.  Morgan,  4  Mod.  *j[  Hunt  v.  Holden,  2  Mass.  170;  A  very  et 

185  ;  Sir  Wollaston  Dixie's  case,  1  Leon,  96  ;  al.  v.  Pixley,  4  Mass.  460;  Churchill  v.  Mer- 

The  King  v.  Peckham,  Carth.  406;  The  King  chants' Bank,  19  Pick.  532  ;  Brudenell  v.Vaux, 

v.  Adderley,  Doug.  462 ;  Castle  v.  Burditt,  3  2  Dall.  302 ;  Commonwealth  v.  Chambre,  4 

T.  R.  623 ;  Lacon-v.  Hooper,  6  T.  R.  224,  per  Dall.  143 ;  Moore  v.  Houston,  3  S.  &  R.  144. 

Lord  Kenyon.  **  2  R.  S.  part  i,  chap,  xix,  tit.  1,  §  3 ;  see 

}  Loring  v.  Hailing,  15  J.  R.  119  ;  Snyder  The  King  T.  Inhabitants  of  Worminghall,  6 

v.  warren,  2  Cowen,  518  ;  Parsons  v.  Cham-  Maule  &  Selw.  350,  a  case  on  a  yearly  hiring, 

berlain,  4  Wend.  512;  People  v.  Mayor  <fec.  ff  Ante,  chap,  iy,  p.  86. 
of  New  York,  10  Wend.  393.     In   the  last 


SUBJECT-MATTER.  359 

of  a  party  may  be  waived  ;  but  that  where  the  enactment  is  to 
secure  general  objects  of  policy  or  morals,  no  consent  will  ren- 
der a  non-compliance  with  the  statute  effectual.  In  Connecticut,, 
a  law  of  1850  provided  that  auditors  might  be  appointed  in 
actions  of  assumpsit,  if  the  cause  of  action  embraced  matters  of 
account.  An  auditor  was  appointed  by  consent,  in  an  action 
brought  by  a  declaration  embracing  a  count  on  a  note  and  the 
common  counts.  No  other  claim  was  in  fact  made  than  on  the 
note,  but  the  parties  went  to  trial  before  the  auditor,  without 
objection.  After  a  report  by  the  auditor,  the  defendant  opposed 
its  acceptance  by  the  court,  on  the  ground  that  the  case  did  not 
come  within  the  act  of  1850 ;  but  the  objection  was  considered 
bad,  and  it  was  said  to  be  like  the  cases  where  parties  ace  held 
by  their  acts  to  waive  objections  to  judges,  commissioners,  to  a 
juror,  or  the  panel  of  jurors.* 

In  the  same  State  it  has  been  held  under  a  statute  declaring 
a  contract  made  on  a  usurious  consideration  to  be  utterly  void, 
that  the  statute  was  made  for  the  benefit  of  the  party  liable 
upon  the  contract,  and  that  he  might,  at  his  option  avoid  the 
security  or  waive  the  benefit  of  the  law.f  So,  the  provisions 
of  a  statute  requiring  a  bond  with  surety  to  be  given  by  the 
party  appealing  from  the  judgment  of  a  justice  of  the  peace,  is 
made  solely  for  the  benefit  of  the  obligee,  who  may  waive  a 
strict  compliance  therewith.  J 

Consent,  however,  will  nevef  give  jurisdiction.  Thus,  where 
an  appeal  is  taken  in  a  cause  not  appealable,  or  to  a  court  not 
having  jurisdiction,  it  is  not  in  the  power  of  the  parties  to  con- 
fer jurisdiction  by  waiving  all  objections.  | 

Subject-mutter. —  It  is  a  general  and  very  sound  rule,  appli- 
cable to  the  construction  of  every  statute,  that  it  is  to  be  taken 
in  reference  to  its  subject-matter.  In  this  way  often  the  opera- 
tion of  general  words  may  be  limited.  So,  too,  the  stock-job- 
bing acts  are  general,  and  their  terms  would  apply  to  transac- 
tions in  foreign  stock ;  a  construction,  however,  which  the  courts 

*  Andrews  v.   Wheeton,   23*    Conn.    142.  Bank  v.   Leavens,   20   Conn.    87;  Groton  & 

See,  also,  King  v.  Lacey,  8  Conn.  R.  499 ;  Ledyard  v.  Hurlburt  et  al.  22  Conn.  178. 
Selleck  v.  Sugar  Hollow  T.  P.  Co.  13  Conn.          f  Wales  v.  Webb,  5  Conn.  R.  154. 
453;    Smith  v.  The  State,    19    Conn.    493;  \  Ives  v.  Finch,  22  Conn.  101. 

Crone  v.  Daniels,  20  Conn.  831 ;  Quinebaug  ||  Ives  v.  Finch,  22  Conn.  101. 


360   GENERAL  WORDS  HOW  QUALIFIED  BY  PARTICULAR  WORDS. 

have  rejected,  in  obedience  to  the  obvious  intention  of  the 
Legislature  that  the  provisions  of  these  enactments  are  to  apply 
only  to  British  stocks.* 

General  Words  how  Qualified  by  Particular  Words,  (a) — It 

*  Salkeld  v.  Johnston,  1  Hare,  196;  Hen-  ter,  2  Bing.  N.  C.  '722;  Elsworth  v.  Cole,  2 
derson  v.  Bise,  3  Starkie,  158  ;  Wells  v.  For-  M.  &  W.  31. 

(a)  Construction  of  General  Words. — General  words  may  be  restrained  by  partic- 
ular words  in  a  subsequent  clause.  Covington  v.  McNickle,  18  B.  Mon.  262.  The 
words  "  any  other  persons  whomsoever,"  held  not  to  be  restricted  in  meaning  by  sub- 
sequent words  describing  particular  persons.  Regina  v.  Doubleday,  3  E.  &  E.  501. 
Special  words  must  prevail  over  general  whether  in  the  same  or  in  other  statutes. 
State  v.  Goetze,  22  Wise.  363.  A  particular  enactment  must  prevail  over  a  general 
enactment  in  the  same  statute ;  "  the  general  enactment  must  be  taken  to  affect  only 
the  other  parts  of  the  statute  to  which  it  may  properly  apply."  Pretty  v.  Solly,  26 
Beav.  606.  Special  and  imperative  provisions  as  to  practice  cannot  be  controlled  by 
general  provisions  in  reference  to  the  same  subject-matter.  Zachary  v.  Chambers,  1 
Oregon,  321.  Power  was  given  to  city  officers  to  "sell"  shares  of  a  railroad  to 
which  the  city  had  subscribed  "  and  to  do  whatever  else  may  seem  necessary,  etc.,  in 
the  premises ;  "  it  was  held  that  no  power  was  given  to  barter  or  exchange  the  shares, 
but  only  a  discretion  as  to  the  manner  of  sale.  Cleveland  v.  State  Bank,  16  Ohio, 
N.  S.  236. 

Ejusdem  Generis. — For  applications  of  the  rule  that  general  words  will  be  re- 
strained to  things  of  the  same  kind  with  those  particularized,  see,  Williams  v.  Gold- 
ing,  Law  R.  1  C.  P.  69;  White  v.  Ivey,  34  Geo.  186;  State  v.  McGarry,  21  Wise. 
496 ;  Mclntyre  v.  Ingrahani,  35  Miss.  25.  Thus,  "  auctioneers,  etc.,  etc.,  and  all 
other  trades,  avocations,  or  professions,  whatever,"  does  not  include  lawyers.  St. 
Louis  v.  Laughlin,  49  Mo.  559.  Where  by  a  statute  certain  specified  defects  in  an 
indictment  were  made  immaterial,  more  general  language  descriptive  of  defects  was 
restricted  to  those  specified.  State  v.  Pemberton,  30  Mo.  376.  But  a  saving  of  "  con- 
tract, obligation,  right,  or  lien,"  was  held  to  include  a  claim  and  action  ex  delicto, 
because  as  "  rights"  would  arise  from  obligations  or  contracts,  the  word  "  right "  here 
used  was  to  have  a  larger  and  additional  sense,  or  else  it  would  be  mere  surplusage. 
Gould  v.  Sub  District,  7  Minn.  203.  And  the  statutory  phrase  being  "  in  any  dwell- 
ing-house, out-house,  yard,  garden,  or  other  place  or  places,"  it  was  held  that  a 
warehouse  occupied  for  business  purposes  only,  and  not  within  the  curtilage  of  or 
connected  with  any  dwelling-house,  was  a  "place"  within  the  meaning  of  the 
statute.  Queen  v.  Edmundson,  2  E.  &  E.  75.  , 

^Implied  Exceptions  to  the  General  Language  of  Statutes. — A  general  statute  of  limita- 
tions, there -being  no  express  exception  of  such  persons,  binds  minors  and  married 
women  though  not  named ;  there  is  no  implied  exception.  Warfield  v.  Fox,  53 
Penn.  St.  382.  And  a  statute  authorizing  in  general  terms  the  foreclosure  of  mort- 
gages by  advertisement  and  sale  under  a  power,  applies  to  a  case  where  the  mort- 
gagor is  insane  at  the  time  of  the  foreclosure.  Encking  v.  Simmons,  28  Wise.  272. 
If  there  is  nothing  in  the  statute  itself  to  limit  its  general  words,  they  must  have 
general  effect, — courts  cannot  arbitrarily  add  to  or  subtract  from  them.  Tynan  v. 
Walker,  35  Cal.  634  ;  Harrington  v.  Smith,  28  Wise.  43.  But  an  exception  of  infants 
from  general  language  broad  enough  to  cover  them  (requiring  the  filing  of 


WAGERS.  361 

is  a  rule  of  right  reason  that  general  words  may  be  qualified  by 
particular  clauses  of  a  statute,  but  that  on  the  other  hand  a 
thing  which  is  given  in  particular  shall  not  be  taken  away  by 
general  words.  This  in  the  civil  law  is  expressed  by  the  phrase, 
In  toto  jure  generi  per  speciem  derogatur,  et  illud  potissimum 
liabitum  quod  ad  speciem  directum  est.  In  the  less  classical' 
Latin  of  the  early  English  law,  the  same  idea  is  conveyed  in 
the  words  generalis  clausula  non  porrigitur  ad  ea  quce  specialiter 
sint  compreJiensa.  In  conformity  to  this  doctrine  it  is  held  that 
where  a  general  intention  is  expressed  in  a  statute,  and  the  act 
also  expresses  a  particular  intention,  incompatible  with  the 
general  intention,  the  particular  intention  shall  be  considered 
as  an  exception.*  Where  general  words  follow  particular 
words,  the  rule  is  to  construe  the  former  as  applicable  to  the 
things  or  persons  particularly  mentioned.!  So,  a  statute  treat- 
ing of  persons  or  things  of  an  inferior  rank,  cannot  by  general 
words  be  extended  to  those  of  a  superior.^ 

Statutes  in  regard  to  Wagers. — At  common  law,  wagers  are 
not  unlawful,  unless  immoral  or  against  public  policy ;  but  the 
tendency  of  legislation  in  this  country,  is  to  make  them  so 
without  exception.  In  New  York,  a  statute  |  declares  all 
wagers,  bets,  or  stakes,  on  racing,  gaming,  or  any  lot,  chance,  or 
unknown  or  contingent  event,  void,  and  all  contracts  for  or  on 
account  of  any  money  or  property,  <fec.,  wagered,  bet,  or  staked, 
void ;  the  act,  however,  being  declared  not  to  apply  to  insur- 

*  Churchill  v.  Crease,  5  Bing.  180— 492-3.  $4  Rep.   4;    2   Rep.  46;   2   Inst.   478; 

f  Sandiman  v.  Breach,  7  B.  &  C.  100.  Dwarris,  656.     But  see,  contra,  2  Inst.  136. 

||  1  R.  S.  part  i,  chap,  xx,  title  8,  art.  3. 

certain  statements  under  certain  penalties)  was  implied  from  the  harshness  of  any 
other  construction  and  the  omission  of  any  provision  for  the  making  of  such  state- 
ments by  guardians,  etc.  Coy  v.  Coy,  15  Minn.  119.  < 

General  Language  Limited  fo/  the  Object  of  the  Act. — A  statute  contained  the  follow- 
ing :  "  The  original  jurisdiction  of  the  Circuit  Court  of  the  Southern  District  of  N. 
Y.  shall  be  confined  to  causes  arising  within  said  district,  and  shall  not  be  construed  to 
extend  to  causes  arising  within  the  Northern  District  -.  "  held  only  to  exclude  causes 
arising  within  the  Northern  District,  and  not  those  arising  outside  of  both  districts, 
the  object  being  to  apportion  jurisdiction  between  the  two  districts.  Wheeler  v.  Mc- 
Cormick,  8  Blatch.  C.  C.  267.  And  where  insurance  companies  before  commencing 
business  were  required  to  have  a  certain  amount  secured  by  mortgage  "  on  unincum- 
bered  real  estate,"  it  was  held  that  the  land  must  be  within  the  State.  State  v.  King, 
44  Mo.  283. 


362  FOREIGN   STATUTES. 

ances  on  interest,  nor  to  contracts  on  bottomry  or  respondentia. 
Under  this  statute  it  has  been  held,  that  an  agreement  in  the 
sale  of  a  horse, — that  the  animal  should  on  or  before  a  given 
day  trot  a  certain  distance  at  a  certain  rate  of  speed,  and  in  case 
he  failed,  then  that  the  vendor  should  deduct  or  pay  back  to 
the  purchaser  one-half  of  such  sum  as  the  failure  might  take 
from  the  market  value  of  the  horse, — is  an  agreement  in  the 
nature  of  a  stake  or  wager  on  a  race,  and  as  such  void  under 
the  statute.* 

Corporations. — The  Revised  Statutes  of  New  York  declare 
that  the  charter  of  every  corporation  that  shall  hereafter  be 
granted  by  the  Legislature  shall  be  subject  to  alteration,  sus- 
pension, and  repeal  in  the  discretion  of  the  Legislature,  f  In 
construing  this  provision,  it  has  been  said  that  the  Legislature 
could  not  convert  a  railroad  company  into  a  banking,  insurance, 
or  mining  company,  for  the  obvious  reason  that  such  an  act 
would  create  a  new  company  of  a  new  and  distinct  character  ; 
but  that  an  act  authorizing  the  railroads  of  the  State,  with  the 
consent  of  two-thirds  in  value  of  the  stock-holders,  to  subscribe 
to  a  railroad  in  Canada,  was  constitutional,  as  the  subscribing 
companies  would  remain  the  same  as  before  as  to  their  charac- 
ter, structure,  objects,  and  business.  J 

But  in  cases  where  no  such  power  is  reserved  by  the  Legis- 
lature, the  true  doctrine  is  that  no  radical  change  or  altera- 
tion can  be  made  or  allowed  in  the  charter  of  a  corporation,  by 
which  new  and  additional  objects  are  to  be  accomplished,  or 
new  responsibilities  incurred,  so  as  to  bind  the  individuals 
composing  the  company  without  their  assent.  ( 

Interpretation  and  Proof  of  Foreign  Statutes. — When  the 

*  Hall  v.  Bergen,  19  Barb.  122.  rule  the  invalidity  of  wagers:  "  La  loi  n'ac- 

The  policy   of  different  countries   varies  corde  aucune  action  pour  un  dettedujeuoupour 

very  much  on  the  subject  of  wagers.     In  En-  le  paiement  d'un  pari." — Code  Civil,  Liv.  8, 

gland,  at  common  law  wagers  are  valid  con-  Tit.   12,  Chap.  Prem.  §  1965.     But  a  class  of 

tracts,  unless  contrary  to  public  policy,  or  exceptions  is   created    in   favor    of   martial 

immoral,  or  in  any  way  tending  to  the  detri-  sports,  foot  and  horse  races,  tennis,  &c.,  sub- 

ment  of  the  public  ;  or,  unless  thev  affect  the  ject,  however,  to  the  discretionary  exercise  of 

interest,  feelings  or  character  of  a  third  per-  the  judicial  power,  where  the  demand  appears 

son  (see  Chitty  on  Contracts,  in  voc.  Wagers),  exorbitant. 
But  the  courts  have    frequently    expressed          f  1  R.  S.  600,  §  8. 

their  disapprobation  of  these  contracts,  and  in          j  White  v.  Syracuse   and  Utica  Railroad 

some   cases,   where  trivial   or  contemptible,  Co.  14  Barbour,  661. 

have  refused  to  try  actions  upon  them.    Gam-  |j  Hartford  and  New  Haven  Railroad  Com- 
ing debts. and  securities  are  void  by  statute,  pany  v.   Croswell,   5   Hill,   384;    Middlesex 
The  French  Code  declares  as  a  general  Turnpike  Company  v.  Locke,  8  Mass.  R.  268. 


FOREIGN  STATUTES.  363 

statutes  of  other  countries,  or  of  other  States  of  this  Union, 
corne  up  for  construction,  the  decisions  of  the  courts  of  the 
State  enacting  the  law  are  held  to  be  a  conclusive  or  authentic 
interpretation ;  *  and  this  very  rightly,  for  it  must  always  be 
impossible  for  any  tribunal  to  have  the  same  means  of 
judging  of  the  true  intention,  scope,  and  purport  of  a  foreign 
statute  as  the  courts  of  the  State  or  country  where  it  was 
framed,  and  the  institutions  of  which  it  was  intended  to  fashion 
or  control. 

The  Supreme  Court  of  the  United  States  has  said,  that 
where  English  statutes,  such  for  instance  as  the  statute  of 
frauds  and  the  statute  of  limitations,  have  been  adopted,  into 
our  legislation,  the  known  and  settled  construction  of  those 
statutes  by  their  courts  of  law  has  been  considered  as  silently 
incorporated  into  the  acts,  or  has  been  received  with  all  the 
wreight  of  authority.  It  was  said  that  this  rule  did  not  strictly 
apply  to  the  English  statute  of  monopolies,  under  which  the 
grants  of  patents  have  there  issued ;  but  that  the  principles  and 
practice  which  have  regulated  their  grants  of  patents,  as  being 
tacitly  referred  to  in  some  of  the  provisions  of  our  patent 
statute,  afforded  materials  to  illustrate  it.f 

Connected  with  this  subject,  another  and  very  interesting 
question  has  arisen,  which  is  whether  the  interpretation  of 
foreign  laws  is  a  question  for  the  jury,  or  for  the  court.  In 
some  cases  it  has  been  intimated  that  the  interpretation  of 
foreign  law  is  matter  of  fact,  for  the  jury.  "  The  question  in 
such  a  case,"  says  the  Supreme  Court  of  Ohio,  "  is  not  what  is 
the  just  and  true  interpretation,  but  what  is  the  actual  inter- 
pretation of  the  statute  by  the  foreign  tribunal.  It  is  a  mat- 
ter of  fact."  J  In  a  case  in  Massachusetts,  turning  on  the  con- 
struction of  a  statute  of  the  State  of  Georgia,  the  statute  itself 
was  proved,  and  the  depositions  of  eminent  lawyers  in  that 
State,  relating  to  the  construction  given  there  to  the  statute  in 
question,  were  also  read,  and  the  court  was  requested  to  de- 
cide what  was  the  law  of  Georgia  in  regard  to  the  matter 

*  Thompson  v.  Alger,  12  Met.  p.  428.  \  Ingraham  v.  Hart,  11  Ohio,  255  ;  Burch- 

\  Pennock  &  Sellers  v.  Dialogue,  2  Peters,     ard,  J.,  dissented. 
1,  18. 


364  FOREIGN   STATUTES. 

in  hand ;  "but  the  application  was  denied,  and  it  was  held  to 
be  a  question  of  fact,  for  the  jury  to  decide,  as  to  what  had 
been  the  construction  given  by  the  courts  of  the  State  of  Georgia, 
to  the  statute  before  them.*  But  on  the  contrary,  it  has  been 
expressly  decided  in  Pennsylvania  and  Alabama,  that  the  inter- 
pretation of  a  foreign  statute  belongs  to  the  court,  f 

As  to  the  proof  of  foreign  laws,  it  has  been  said  in  Massa- 
chusetts, that  a  volume  purporting  on  the  face  of  it  to  contain 
the  laws  of  a  sister  State  is  admissible  as  prima  facie  evidence 
to  prove  the  statute  law  of  that  State :  "  The  connection,  inter- 
course and  constitutional  ties  which  bind  together  these  several 
States,  require  that  this  species  of  evidence  should  be  sufficient, 
until  contradicted."  But  it  was  said  at  the  same  time,  that  the 
court  did  not  mean  to  decide  that  the  law  of  any  country  merely 
foreign  could  be  so  proved.  %  In  Michigan,  it  has  been 
said  that  the  court  will  presume  the  law  of  a  sister  State  to  be 
the  same  as  their  own  State,  unless  the  contrary  is  shown.  |  It 
has  been  held  in  Pennsylvania,  that  judicial  cognizance  will  be 
taken  of  the  law  of  another  State,  no  proof  of  it  whatever  hav- 
ing been  given.^f  It  appears  to  me  very  proper  that  the  inter- 
pretation of  a  foreign  law,  as  of  a  domestic,  should  be  confided 
to  the  court ;  and  equally  dangerous  to  assume  the  existence  of 
the  law  of  another  jurisdiction,  whether  of  another  State  or  a 
wholly  foreign  country,  as  a  fact,  without  submitting  it  to  the 
ordinary  tests  of  proof. 

We  may  remark,  as  connected  with  the  question  of  foreign 
statutes,  in  regard  to  the  rule  which  we  have  already  (p.  79) 
had  occasion  to  notice,  that  ignorance  of  law  is  no  excuse,  that 
the  principle  does  not  apply  to  foreign  law.  Juris  ignorantia 

*  Holman  v.  King,  7  Met.  388.  151.     la  this  case,  in  the  King's  Bench,  the 

f  Bock  v.  Lauman,  24  Penn.  435.  In  Con-  qustion  being  on  a  point  of  French  law,  grow- 

necticut  it  is  regulated  by  a  statute  ;  see  Hale  ing  out  of  the  construction  of  the  Code  de 

v.  N.  J.  Steam  Nav.  Co.  15  Conn.  539  ;  Lock-  Commerce,  and  the  opinions  of  French  advo- 

wood  v.  Crawford,  18  Conn.   361 ;  Inge   v.  cates  having  been  taken  by  consent,  but  ap- 

Murphy,  10  Ala.  885.  pearing   contradictory,   the   court   examined 

IRaynham  v.  Canton,  3  Pick.  293.  the  Code  itself,  and  decided  the  case  upon  its 
Crane  v.  Hardy,  1  Michigan,  56.  own  construction   of  the  clause  in  question. 
•fl"  Bock  v.   Lauman,  24  Penn.  435.     See,  Vander  Donckt  v.  Thellusson,  8  C.  B.  R.  8 17: 
on  the  subject    of  proving  foreign    law    as  Belgian  laws  proved  by  a  merchant  and  stock- 
matter  of  fact,  Bristow  v.  Sequeville,  5  Exch.  broker.     Inglis  et  al.  v.  Usherwood,  1  East, 
275.     A  student  in  a  foreign  university  is  in-  515,  turned  upon  a  question  of  Russian  law, 
competent  to  prove  the  law  of  that  country,  but  the  construction  or  meaning  seems  to  have 
See  also  Trimby  v.  Vignier,   1  Bing.    N.  C.  been  admitted. 


REVISION   OF  STATUTES.  365 

est  cum  jus  nostrum  ignoramus  /  and  it  had  been  held  that  ig- 
norance of  the  law  of  a  foreign  government  is  ignorance  of  fact ; 
and  the  laws  of  the  other  States  of  the  Union  being  in  this  re- 
spect regarded  as  foreign  laws,  it  has  been  decided  in  Massachu- 
setts that  money  paid  by  mistake,  through  ignorance  of  the  law 
of  another  of  the  United  States,  can  be  recovered  back.* 

Revision  of  Statutes. — It  is  proper  here  to  notice  some  prin- 
ciples peculiar  to  this  country,  growing  out  of  the  frequent 
revision  of  our  statutory  law,  and  the  changes  consequent 
thereupon,  (a) 

In  New  York  it  has  been  said  that  "  it  has  long  been  a 
cardinal  and  controlling  maxim,  that  where  a  law  antecedently 
to  a  revision  of  the  statutes  is  settled  either  by  clear  expressions 
in  the  statutes,  or  adjudications  on  them,  the  mere  change  of 
phraseology  shall  not  be  deemed  or  construed  a  change  of  the 
law,  unless  such  praseology  evidently  purport  an  intention  in 
the  Legislature  to  work  a  change,  f  So  in  New  Hampshire,  it 
has  been  held  that  upon  the  revision  of  the  statutes  the  con- 
struction  will  not  be  changed  by  such  alterations  as  are  merely 
designed  to  render  the  provisions  more  concise.  J 

In  the  adoption  of  the  Code,  it  has  been  said  in  Alabama 

*  Haven  v.  Foster,  9  Pick.  112.  Young  v.   Date,   1    Seld.   463;     Elwood  v. 

f  Yate's  Case,   4  J.   R.    359 ;    Matter  of  Klock,   13  Barb.   50 ;    Douglass  v.  Howland, 

Theriat  v.  Hart,  2  Hill.  380;    Parmelee  v.  24  Wend.  35  ;    Dominick  v.  Michael,  4  Sand. 

Thompson,  7  Hill,  ^7 ;    Taylor  v.  Delancy,  2  S.  C.  R.  per  Dner,  J.   374,  409 ;    Hughes  v. 

C.  C.  in  Error,  150 ;    Goodell  v.  Jackson,  20  Farrar,  45  Me.  72. 
J.  R.   722  ;    Croswell  v.  Crane,  7  Barb.  191 ;          \  Mooers  v.  Bunker,  9  Foster,  p.  421. 

(a)  Revision. — Where  a  statute  evidently  is  intended  to  revise  the  whole  subject 
treated  in  a  former  statute,  and  to  be  a  substitute  therefor,  it  repeals  such  former 
statute.  Wakefield  v.  Phelps,  37  N.  H.  295 ;  Farr  v.  Brackett,  30  Vt.  344 ;  Giddings 
v.,  Cox,  31  Vt.  607;  State  v.  Conkling,  19  Cal.  501 ;  and  see  Stirman  v.  State,  21 
Tex.  734  ;  Conley  v.  Calhoun  Co.  2  W.  Va,  416  ;  and  though  there  is  a  plain  casus 
omissus,  the  courts  cannot  supply  it.  Ripley  v.  Gifford,  11  Iowa,  367.  Sections 
omitted  in  a  revision  are  not  revived  but  are  annulled.  Pingree  v.  Snell,  42  Me.  53. 

Exit  where  the  revisory  statute  contains  a  repeal  only  of  all  inconsistent  acts,  etc., 
the  repeal  will  extend  no  farther  than  the  inconsistency.  Lewis  v.  Stout,  22  Wise.  234. 
And  where  a  section  is  re-enacted  with  an  addition,  there  being  a  constitutional  pro- 
vision that  an  amendment  can  only  be  made  by  setting  out  the  section  as  amended, 
it  will  not  be  a  repeal.  Alexander  v.  State,  9  Ind.  337 ;  but,  per  contra,  see  Billings  v. 
Harvey,  6  Cal.  381.  As  to  the  effect  of  a  substantial  re-enactment  of  a  former  section 
in  a  later  section  of  the  same  act,  see  Martindale  v.  Martindale,  10  Ind.  566.  See 
note  on  "  Repeal.'' 


366  CONSTRUCTION  OF  STATE  LAWS  IN  U.  S.  COURTS. 

that  the  Legislature  must  be  presumed  to  have  known  the  judi- 
cial construction  which  had  been  placed  on  the  former  statutes ; 
and  therefore  the  re-enactment  in'  the  Code  of  provisions  sub- 
stantially the  same  as  those  contained  in  a  former  statute,  is  a 
legislative  adoption  of  their  known  judicial  construction.* 

In  Massachusetts  it  also  has  been  held  in  regard  to  the  re- 
vision of  statutes,  to  be  a  well-settled  rule  that  when  any  statute 
is  revised  or  one  act  framed  from  another,  some  parts  being 
omitted,  the  parts  omitted  are  not  to  be  revived  by  construction, 
but  are  to  be  considered  as  annulled ;  to  hold  otherwise  would  be 
to  impute  to  the  Legislature  gross  carelessness  or  ignorance, 
which  is  altogether  inadmissible.  So,  in  that  State  a  very  use- 
ful statute,  passed  in  1754,  concerning  donations  and  bequests  to 
pious,  and  charitable,  <fec.,  was  decided  not  to  be  in  force,  on  the 
ground  that  the  Legislature  had  in  1785  legislated  on  the  same 
subject,  and  omitted  to  re-enact  the  provisions  of  the  statute.f 

Another  rule  connected  with  the  subject  of  the  revision  of 
statutes,  may  be  appropriately  stated  here.  In  this  country  the 
State  statutes  have  been  frequently  revised  and  altered  upon 
the  report  of  officers  appointed  for  the  purpose,  revisors  or  com- 
missioners ;  and  in  submitting  their  proposed  revision  or  alter- 
ation to  the  Legislature,  the  legal  advisers  of  the  State  have 
stated  in  the  shape  of  reports  or  of  notes  their  reason  for  the 
proposed  change  of  phraseology  or  provision,  and*  the  meaning 
which  they  affixed  to  it ;  but  it  has  been  held  that  such  reports 
or  notes  are  not  to  be  taken  as  an  authoritative  construction  of 
the  revised  or  amended  law,  as  the  revisors  might  have  meant 
one  thing  and  the  Legislature  another ;  and  that  the  meaning 
of  the  statute  is  to  be  obtained  and  arrived  at  in  the  usual 
way.J 

State  Statutes  how  Construed  in  the  United  States  Courts. — 
One  great  object  of  the  Federal  Constitution,  among  others,  was 
by  the  creation  of  a  national  judiciary  to  secure  a  tribunal  free 
from  all  local  influences  to  decide  on  controversies  between  the 

*  Duramus  v.  Harrison  &  Whitman,  26          f  Ellis  v.  Paige  et  al.  1  Pick.  43 ;    Bartlett 

Ala.  326.     And  the  separation  in  the  revision  et  al.  v.  King,  Exr.  12  Mass.  R.  537  ;    Nichols 

into  different  parts  of  what  was  before  a  con-  v.  Squire,  5  Pick.  168. 
nected  code,  does  not  affect  the  construction.  $  Forrest  v.  Forrest,  10  Barb.  46. 

Smith  v.  Smith,  19  Wise.  522. 


CONSTRUCTION  OF   STATE  LAWS  IN  U.  S.   COURTS.  3G7 

States  themselves,  between  citizens  of  different  States,  and  be- 
tween citizens  and  foreigners.  Besides  this,  in  order  to  secure 
the  supremacy  of  the  Constitution  of  the  United  States,  an  ap- 
peal lies,  in  cases  affecting  the  construction  of  the  Federal  Charter 
or  of  acts  of  Congress,  from  the  highest  State  courts  to  the  Su- 
preme Court  of  the  United  States.*  It  necessarily  results  that 
statutes  .of  the  several  States,  come  constantly  under  revision 
in  the  Supreme  Court  of  the  United  States.  The  rules  of  con- 
struction which  are  there  applied  to  them,  become  therefore  a 
matter  of  the  highest  interest,  (a) 

*  Martin  v.  Hunter's  Lessee,  1  Wheat,  the  appellate  jurisdiction  was  sustained  in  an 
804;  Cohens  v.  Virginia,  6  Wheat.  413,  where  elaborate  opinion  by  Marshall,  C.  J. 

(a)  Construction  of  State  Statutes  ly  the  U.  8.  Courts. — They  are  to  receive  the 
construction  given  to  them  by  the  highest  court  of  the  State.  Bloodgood  v.  Gracey, 
31  Ala.  575  ;  Black  v.  Delaware  &c.  Canal,  22  N.  J.  130;  The  Samuel  Strong,  1 
Newb.  Adm.  187  ;  Boyle  v.  Arlidge,  1  Hemps.  620  ;  and  the  same  is  true  of  a  clause 
in  a  State  Constitution,  State  v.  Macon  Co.  Court,  41  Mo.  453  ;  Draper  v.  Emerson, 
22  Wise.  147 ;  and  it  makes  no  difference  that  the  transaction  was  before  the  decision 
giving  a  construction  to  the  statute,  nor  that  the  parties  have  left  the  State.  Ibid. 

But  the  Supreme  Court  of  the  U.  S.  has  not  followed  this  doctrine  closely,  in  a 
series  of  recent  cases  upon  the  power  of  municipalities  under  State  laws  and  Consti- 
tutions to  issue  bonds  in  aid  of  railroads.  Thus,  where  the  power  of  a  city  to  lay 
taxes  was  limited  by  its  charter  to  one  per  cent,  of  the  assessed  value  of  the  property 
within  it,  and  a  judgment  had  been  recovered  against  the  city  upon  bonds  issued 
under  a  former  statute,  and  the  State  courts  had  held  that  the  limitation  in  the 
charter  applied  to  such  a  case,  and  that  the  city  could  not  be  compelled  to  lay  a  tax 
of  more  than  one  per  cent,  to  pay  such  judgment,  the  Supreme  Court  refused  to  fol- 
low such  decision  and  held  that  the  limitation  of  the  charter  did  not  apply.  Butz 
v.  Muscatine,  8  Wall.  575.  Where  the  decision  of  the  United  States  Circuit  Court  in 
construing  a  State  statute  follows  the  construction  given  by  the  State  courts  at  the 
time  when  it  was  rendered,  the  Supreme  Court  will  not  reverse  such  decision,  be- 
cause the  State  courts  have  in  the  mean  time  changed  their  construction.  Morgan 
v.  Curtenius,  20  How.  1.  In  respect  to  titles  derived  from  the  U.  S.,  the  courts  of 
the  U.  S.  follow  their  own  rules  of  decision.  Thus,  although  a  State  statute 'author- 
izes an  action  of  ejectment  upon  an  entry  of  land  previous  to  the  issue  of  a  patent, 
the  courts  of  the  U.  S.  will  not  permit  such  suit  in  the.ir  jurisdiction,  they  holding 
that  such  title  is  equitable  merely.  Hooper  v.  Scheimer,  23  How.  235. 

The  adoption  of  a  statute  originally  passed  in  another  State,  carries  with  it  the 
construction  which  obtained  in  the  original  jurisdiction  at  the  time  of  such  adoption. 
Tyler  v.  Tyler,  19  111.  151;  Drennan  v.  People,  10  Mich.  169;  Scruggs  v.  Blair,  44 
Miss.  406  ;  Galbraith  v.  Galbraith,  5  Kans.  402.  But  where  such  construction  was 
based  upon  a  reason  not  existing  in  the  State  which  adopts  the  foreign  statute,  the 
rule  may  be  otherwise.  See  Tyler  v.  Tyler,  ubi  supra.  And  when  a  constitutional 
provision  against  special  and  local  legislation  was  borrowed,  it  was  held  that  the  con- 
struction, that  special  or  local  laws  could  not  be  enacted  when  general  ones  could  be 


368  CONSTRUCTION   OF   STATE   LAWS   IN  U.   S.   COURTS. 

On  this  subject  the  general  doctrine  is,  that  in  construing 
the  statutes  of  the  several  States,  so  far  as  those  statutes  belong 
to  the  local  law  of  the  States,  the  Supreme  Court  of  the  United 
States  looks  to  the  decisions  of  the  highest  courts  of  the  State ; 
and  where  the  construction  is  settled  by  such  tribunal,  the 
federal  tribunal  adopts  it  as  its  own.*  And  the  same  princi- 
ple has  been  declared  to  hold  good  in  regard  to  State  Constitu- 
tions^ So,  in  an  early  case  in  the  Supreme  Court  of  the  Unit- 
ed States,  turning  on  the  Pennsylvania  acts  respecting  the 
registry  of  deeds,  C.  J.  Marshall  said,  "Were  this  act  of  1715 
now  for  the  first  time  to  be  construed,  the  opinion  of  this  court 
would  certainly  be,  that  the  deed  was  not  regularly  proved. 
But  in  construing  the  statutes  of  a  State  on  which  land  titles 
depend,  infinite  mischief  would  ensue  should  this  court  ob- 
serve a  different  rule  from  that  which  has  been  long  established 
in  the  State ; "  *  *  "  the  court  yields  the  construction  which 
would  be  put  on  the  words  of  the  act,  to  that  which  the  courts 
of  the  State  have  put  on  it,  and  on  which  many  titles  may 
probably  depend."  J  "  The  laws  imposing  a  tax  on  lands,  and 
regulating  its  collection,  in  perhaps  almost  all  the  States,"  says 
Mr.  Justice  M'Lean,  speaking  for  the  Supreme  Court  of  the  Unit- 
ed States,  "  are  peculiar  in  their  provisions,  having  been  framed 
under  the  influence  of  a  local  policy.  And  this  policy  has  to 
some  extent  influenced  the  construction  of  those  laws.  There 
can  be  no  class  of  laws  more  strictly  local  in  their  character, 
and  which  more  directly  concern  real  property,  than  these. 

*  M'Keen  v.  Delancey's  Lessee,  5  Cr.  22 ;  adopts  the  local  law  of  real  property  as  ascer- 

Polk's  Lessee  v.  Wendell  e<  al.  9  Cr.  87;  Gard-  tained  by  the  decisions  of  the  State  courts, 

ner  v.  Collins  et  al.  2  Pet.  58 ;  Shelby  v.  Guy,  whether  those  decisions  are  upon  the  con- 

11  Wheajt.  361 ;  Green  v.  Lessee  of  Neal,  6  strnction  of  the  statutes  of  the  State,  or  form 

Pet.  291 ;  Nesmith  v.  Sheldon,  8  How.  812.  a  part  of  the  unwritten  law  of  the  State. 

f  Webster  v.  Cooper,  14  How.  488.  Jackson  v.   Chew,   12  Wheat.  153  ;  Also   see 

\  M'Keen  v.  Delancey's  Lessee,  5  Cranch,  Shelby  v.  Guy,  11  Wheat.  361,  as  to  the  adop- 

22,  32,  33.  tion  of  State  law  generally ;  and  Swift  v.  Ty- 

It  has  been  said,  that  the  Supreme  Court  son,  16  Peters,  pp.  1  and  18. 

made  applicable,  was  also  borrowed,  but  not  the  decisions  defining  the  cases  in  which 
general  laws  could  be  made  applicable.  Hess  v.  Pegg,  7  Nev.  23.  Where  there  is  no 
proof  of  the  construction  of  a  borrowed  statute  in  the  State  in  which  it  was  origi- 
nally enacted,  it  would  be  construed  as  such  a  statute  would  be  in  the  jurisdiction  of 
its  adoption.  Smith  v.  Bartram,  11  Ohio,  N.  S.  660. 

Construction  of  State  statutes  by  the  courts  of  the  U.  S.  is  not  binding  upon 
State  courts.     Deans  v.  McLendon,  30  Miss.  343  ;  Levy  v.  Mentz,  23  La.  Ann.  261. 


STATE  STATUTES,  HOW  CONSTRUED  IN  U.  S.  COURTS.     369 

They  not  only  constitute  a  rule  of  property,  but  their  construc- 
tion by-  the  courts  of  the  States  should  be  followed  by  the 
courts  of  the  United  States,  with  equal,  if  not  greater  strictness 
than  the  construction  of  any  other  class  of  laws."  * 

The  rule  of  adoption  of  State  construction  by  the  Federal 
judiciary  has  been  said  to  grow  out  of  the  constitution  of  the 
Federal  tribunal.  The  jurisdiction  of  the  Supreme  Court,  over 
cases  where  citizens  of  another  State  than  the  one  in  which  the 
suit  arises  are  concerned,  rests  upon  the  ground  that  the  Fed- 
eral courts,  in  applying  the  law,  will  be  more  free  from  undue 
influence.  But  the  law  to  be  applied  is  the  local  law,  and  that 
law  is  to  be  administered  as  it  is,  not  reviewed  or  altered.  And 
the  tribunals  of  each  State  are  rightly  considered  best  to  un- 
derstand what  is  the  law  of  the  State,  f  This  course  is  pursued, 
it  has  been  again  said,  "  not  on  the  ground  of  authority,  but  of 
policy. J  It  would  be  injurious  to  the  citizens  of  a  State  to 
have  two  rules  of  property.  Such  a  course  by  the  courts  of  the 
Union  would  produce  unfortunate  conflicts,  and  encourage 
litigation." 

But  the  rule  is  not  without  exceptions.  It  does  not  apply 
to  decisions  on  charters  granted  by  the  British  crown,  under 
which  certain  rights  are  claimed  by  the  State  on  the  one  hand 
and  by  private  individuals  on  the  other ;  and  in  regard  to  these, 
the  Supreme  Court  reserves  its  absolute  independence  of  judg- 
ment. |  So,  again,  it  has  been  said  by  the  Supreme  Court  of 
the  United  States,  that  the  rule  of  that  court  recognizing  the 
decisions  of  the  highest  courts  of  the  States  made  in  regard  to 
State  statutes,  as  containing  an  authoritative  exposition  of  their 
true  meaning,  does  not  relate  to  private  statutes,  relating  to 
particular  persons,  or  to  statutes  giving  special  jurisdiction  to  a 
State  court  for  the  alienation  of  private  estates,  "  for  the  reason 
that  whatever  a  State  court  may  do  in  such  a  case,  its  decision 
is  no  part  of  the  local  law."  ^f  But  I  may  be  permitted  to 
doubt  whether  the  same  reasons  of  comity,  policy,  and  practical 

*  Games  et  al.  v.  Stiles,  14  Peters,  322, 328.  i  Woolsey  v.  Dodge,  6  M'Lean,  142. 

f  Wood,  arguendo,  in   Martin  v.  Waddell,  f  Martin  v.  Waddell,  16  Peters,  367,  418.  ' 

16  Peters,  367,  390;  Elmendorf  v.  Taylor,  10  «j[  Williamson  et  al.  v.  Berny,  8  How.  496, 

Wheaton,   152;  Bell  v.   Morrison,  1   Peters,  543. 
369;  Green  v.  Neal,  6  Peters,  301. 

24 


370  STATE   STATUTES,   HOW  CONSTRUED   IN  U.   S.   COURTS. 

'  expediency  which  recommend  the  rule  as  to  public  statutes, 
should  not  make  it  operate  with  equal  effect  on  private  statutes ; 
every  statute  affecting  the  tenure  of  real  property  in  a  State, 
whether  public  or  private,  is  certainly  in  some  sense  a  part  of 
the  local  law. 

So,  too,  where  the  Supreme  Court  of  the  United  States  have 
first  decided  upon  State  laws,  the  Federal  tribunal  does  not  feel 
bound  to  surrender  their  convictions  on  account  of  a  contrary 
decision  of  a  State  court.*  So,  again,  when  the  decisions  of  a 
State  court  are  conflicting,  the  Supreme  Court  of  the  United 
States  does  not  consider  itself  bound  to  follow  the  last  case,  con- 
trary to  their  own  convictions,  and  especially,  they  have  said, 
where  after  a  long  course  of  decisions  some  new  light  springs 
up,  or  an  excited  public  opinion  has  brought  out  new  doctrines 
subversive  of  former  safe  precedent.  In  Michigan,  the  original 
manuscript  of  the  statute  of  limitations  left  out  the  saving 
clause  "  beyond  seas ; "  but  the  published  law  contained  the  ex- 
ception, and  had  been  so  received  and  construed  by  the  people 
and  the  courts  for  a  long  series  of  years,  and  a  subsequent  Leg- 
islature sanctioned. the  law  as  published;  nevertheless,  the  Su- 
preme Court  of  Michigan  decided  that  the  printed  statutes  did 
not  form  a  part  of  the  laws  of  that  State,  but  that  the  original 
roll  must  be  received  as  the  exact  record  of  the  legislative  will. 
But  the  Supreme  Court  of  the  United  States  disregarded  the 
decision  of  the  Michigan  tribunal,  and  decided  that  the  printed 
statute  might  control  the  case.f 

In  a  case  before  the  Supreme  Court  of  the  United  States,  it 
was  contended  that  the  decisions  of  the  local  tribunals  on  ques- 
tions of  general  commercial  law  were  to  be  treated  as  having 
the  binding  force  of  statutory  enactments.  But  the  court  re- 
jected the  proposition.  J 

Having,  in  the  previous  pages,  endeavored  to  give  a  general 

*  Rowan  v.  Runnells,  5  Howard,  139.  Supreme  Court  had  given  a  judicial  construc- 

f  Pease  v.  Peck,  18  Howard,  596.  tion  to  a  provision  of  a  recent  statute,  that 

J  Swift  v.  Tyson,  16  Peters,  pp.  1  and  18.  decision,  if  not  clearly  wrong,  should  be  fol- 

As  to  harmony  between   the  decisions  of  tri-  lowed  by  the  Court  of  Chancery,  so  that  dif- 

bunals  of  co-ordinate  jurisdiction  in  regard  to  ferent  rules  of  construction  might  not  prevail 

the  construction  of  statutes,  I  may  notice  that  in  the  courts  of  law  and  equity  in  relation  to 

in  Merville   v.  Cownsend,  5   Paige,  80,   Mr.  the  same  statutory  provisions." 
Chancellor  "Walworth   said  "  that  where  the 


CONSTRUCTION  OF   PARTICULAR   WORDS.  371 

outline  of  the  system  of  our  law  in  regard  to  the  interpretation 
and  application  of  statutes,  I  close  this  branch  of  my  subject  by 
some  instances  of  the  power  of  interpretation  and  construction 
as  applied  to  particular  words.  It  is  not  designed  to  do  more 
than  to  give  an  idea  of  the  mode  in  which  the  judicial  authority 
in  this  respect  is  exercised,  (a) 

(a)  Particular  Words. — Action  construed  to  include  suits  in  equity.  Coatsworth 
v.  Barr,  11  Mich.  199.  Does  so  under  N.  Y.  Code.  Corson  v.  Ball,  47  Barb.  452. 
Does  not  include  criminal  proceedings.  Calkins  v.  State,  14  Ohio,  N.  8.  222. 

Absent  Person  in  settlement  laws.     See  Wilmington  v.  Somerset,  35  Vt.  232. 

And  and  or  are  convertible  as  the  sense  of  the  statute  may  require,  even  in  a  crim. 
inal  statute.  State  v.  Myers,  10  Iowa,  448.  ''And"  construed  " or,"  as  being  more 
reasonable,  and  as  being  according  to  the  intent  shown  by  a  prior  statute  in  pari 
materia.  Townsend  v.  Read,  10  C.  B.  (N.  S.)  308.  "  Or"  construed  "and."  Bojles 
v.  Murphy,  55  111.  236. 

Arbitration  distinguished  from  appraisement  by  valuers.  Collins  v.  Collins,  26 
Beav.  306. 

Bridge  includes  such  abutments  as  are  necessary.  Tolland  v.  Willington,  26  Conn. 
578;  and  see  also  Linton  v.  Sharpsburg  Bridge,  1  Grant's  Gas.  414.  As  to  "railroad 
bridge,"  see  Bridge  Proprietors  v.  Hoboken  &c.  Co.  1  Wall.  116. 

Ceteris paribus  construed.     See  Atty.  Gen.  v.  Earl  of  Powis,  1  Kay,  186. 

Carrying  on  Business.     See  In  re  Alabama  &c.  R.  R.  9  Blatch.  C.  C.  390. 

Casting  Vote  held  to  mean  in  this  case  a  vote  where  there  was  a  tie,  the  person 
having  such  casting  vote  himself  voting — i.  e.,  having  a  double  vote.  People  v. 
Church  of  the  Atonement,  48  Barb.  603. 

Connection  between  different  railroads  defined.  Philadelphia  &c.  R.  R.  v.  Cata- 
wissa  R.  R.  53  Penn.  St.  20.  Between  societies,  defined.  Allison  v.  Smith,  16- 
Mich.  405. 

Dwelling  House  means  only  such  as  is  so  used;  it  is  immaterial  that  the  building 
was  originally  constructed  for  that  purpose.  N.  Y.  Fire  Department  v.  Buhler,  35 
N.  Y.  177. 

Enclosure  is  not  so  broad  a  term  as  "  close."     Porter  v.  Aldrich,  39  Vt.  326. 

Erection.  The  removal  of  a  building  from  one  part  of  a  lot  to  another,  where  it 
is  permanently  located,  is  not  an  "  erection  "  within  the  terms  of  a  statute  against  the 
erection  of  wooden  buildings.  Brown  v.  Hunn,  27  Conn.  332. 

Fire-works  defined.     See  Bliss  v.  Lilley,  3  B.  &  S.  128. 

General  and  "public"  are,  it  seems,  convertible  terms  as  applied  to  statutes. 
Clark  v.  Janesville,  10  Wise.  136.  But  many  N.  Y.  cases  make  a  distinction,  and 
oppose  "general"  to  "local,"  and  "public"  to  "private,"  holding  that  a  statute  may 
be  "public"  but  "local."  See  cases  collected  in  note  on  " Titles  and  Subjects  of 
Statutes." 

Grain  construed  to  include  "millet,"  and  " sugar-cane  seed,"  in  a  penal  statute. 
Holland  v.  State,  34  Geo.  455. 

Heirs,  held  to  mean  heirs  according  to  the  statute  of  distributions,  in  In  re  Ste- 
vens' Trusts,  Law  R.  15  Eq.  110. 

Home  or  Dwelling  Place  construed  in  Wilmington  v.  Somerset,  35  Vt.  232. 


372  CONSTRUCTION  OF   PARTICULAR  WORDS. 

Banking  Principles. — A  statutory  authority  to  a  corpora- 
tion to  loan  and  negotiate  their  moneys  and  effects  upon  bank- 
ing principles,  has  been  said,  "  if  the  phrase  has  any  peculiar 

House,  a  church  held  to  be  a  house  within  meaning  of  a  statute  relating  to  setting 
houses  back  from  the  street.  Folkestone  v.  Woodward,  Law  R.  15  Eq.  159. 

Inland  Navigation  does  not  include  navigation  on  the  great  lakes.  Moore  v. 
American  Trans.  Co.  24  How.  1. 

Internal  Improvements.  See  Mayor  of  Wetumpka  v.  "Winter,  29  Ala.  651 ;  Low  v. 
Marysville,  5  Cal.  214. 

Judgment  Debtor,  in  a  statute  giving  certain  remedies  to  creditors,  includes  a  cor- 
poration. De  Bemer  v.  Drew,  57  Barb.  438. 

Laborer,  or  "operative,"  does  not  include  a  consulting  engineer.  Ericsson  v. 
Brown,  38  Barb.  390.  Nor  a  contractor  for  men  and  horses,  although  he  himself 
drives  his  teams.  Balch  v.  N.  Y.  &c.  R.  R.  46  N.  Y.  521. 

Lessee  of  a  railroad,  construed  in  Burchfield  v.  Northern  C.  R.  R.  57  Barb.  589. 

Lowest  Bidder,  whether,  when  a  contract  is  required  to  be  awarded  to  the  "  lowest 
bidder,"  it  can  be  given  to  the  owner  of  a  patented  article  in  respect  of  which  there 
can  be  no  competition  ?  It  can.  Hobart  v.  Detroit,  17  Mich.  246.  Per  contra,  it 
cannot.  Nicholson  &c.  Co.  v.  Painter,  35  Cal.  699 ;  and  see  Cleveland  &c.  Co.  v. 
Fire  Comm'rs,  55  Barb.  288. 

Month  held  to  mean  calendar  month,  in  Gross  v.  Fowler,  21  Cal.  392. 

Next  of  Kin,  excludes  representation.     Clayton  v.  Drake,  17  Ohio,  N.  S.  367. 

Owners  or  Occupiers,  construed  in  Mourilyan  v.  Labalmondiere,  1  E.  &  E.  533. 

Par,  denned  in  Galloway  v.  Jenkins,  63  N.  C.  147. 

Perishable  ordinarily  means  "  subject  to  speedy  and  natural  decay."  Webster  v. 
Peck,  31  Conn.  495.  But  where  the  time  contemplated  is  necessarily  long,  the  term 
may  embrace  property  liable  merely  to  material  depreciation  in  value  from  other 
causes  than  such  decay.  Ibid. 

Person  includes  artificial  persons,  corporations,  or  quasi  corporations.  Douglas  v. 
Pac.  Mail  8.  S.  Co.  4  Cal.  304 ;  Louisville  &c.  R.  R.  v.  Commonwealth,  1  Bush  (Ky.) 
250 ;  U.  S.  Tel.  Co.  v.  West.  Un.  Tel.  Co.  56  Barb.  46 ;  Fisher  v.  Horicon,  10  Wise. 
351 ;  Canal  Co.  v.  Dauphin  Co.  3  Brewst.  124.  And  it  even  includes  the  State  in  a 
statute  to  punish  certain  frauds  against  "  any  person."  Martin  v.  State,  24  Tex.  61. 

Personal  Property,  held  in  this  particular  case  not  to  include  promissory  notes  ; 
and  a  dictum  that  these  words  do  not  in  general  cover  promissory  notes.  Mclntyre 
v.  Ingraham,  35  Miss.  25.  This  dictum  is  certainly  contrary  to  all  of  the  accepted 
definitions  of  the  term.  There  is  nothing  in  promissory  notes  to  distinguish  them 
from  other  things  in  action,  so  that  if  the  dictum  were  correct,  "  personal  property  " 
would  have  to  be  limited  to  chattels. 

Personal  Representative  does  not  include  an  agent.    Jones  v.  Tainter,  15  Minn.  512. 

Possession,  for  meaning  of,  as  used  in  the  "  Factor's  Act,"  see  Pegram  v.  Carson, 
10  Bosw.  505.  For  construction  of  "  actual  possession,"  see  Dodge  v.  Chandler.  9 
Minn.  97. 

Proceeding.  The  saving  clause  of  a  Code  of  Practice  declared  that  it  should  not 
affect  any  "  proceeding  "  commenced  before  its  enactment ;  it  was  held  that  this  did 
not  cover  a  judgment  recovered  before  the  passage  of  the  Code,  and  that  another 
clause  of  the  Code  taking  away  the  lien  of  judgments  applied  to  such  prior  judg- 
ment. Daily  v.  Burke,  28  Ala.  328.  That  the  clause  taking  away  such  prior  lien 


CONSTRUCTION  OF  PARTICULAR  WORDS.  373 

meaning,  to  be  an  authority  to  deduct  the  interest  at  the  com- 
mencement of  loans,  or  to  make  loans  upon  discounts,  instead 
of  the  ordinary  forms  of  security  for  an  accruing  interest."  * 

Billiards. — A  license  by  the  Legislature  of  billiard  tables, 
cannot  be  understood  to  authorize  any  other  species  of  gaming,  f 

Burglary  at  common  law  means  the  crime  of  breaking  into 
a  house  in.  the  night  time,  with  the  intent  to  steal  or  commit 
a  felony ;  and  it  has  been  held  in  Alabama,  that  this  term, 
when  used  in  their  Code,  must  receive  the  same  construc- 
tion. % 

Cattle. — Various  cases  have  been  decided  as  to  what  are 
considered  cattle  in  England ;  and  the  construction  varies  with 
the  statutes  in  which  they  are  used.  | 

Corporate  Name. — Where  an  act  required  certain  suits  to 
be  brought  in  the  corporate  name  of  cities  or  villages,  it  was 
held  that  the  phrase  meant  the  name  by  which  the  city  or  vL- 
lage  was  designated  in  its  charter,  and  a  suit  brought  in  the 

*  Maine  Bank  v.  Butts,  9  Mass.  49.  the  common  law,  have  obtained  a  fixed  and 

f  Barker  v.  The  State,  12  Texas,  273.  definite  meaning,  the  inference,  we  think,  is 

\  Ex  parte  Vincent,  26  Ala.  145,  the  court  irresistible,  that  they  were  intended  to  be 

say,  "  When  words  are  used  by  the  Legisla-  used  in  the  common-law  sense." 
ture  in  relation  to  a  matter  or  subject,  which,  ||  3  Bing.  581 ;  2  W.  Black.  723 ;  ex  parle 

when  used  in  reference  to  the  same  subject  at  Hill,  3  C.  <fc  P.  225 ;  Dwarris,  p.  750. 

would  be  void  as  impairing  the  obligation  of  contracts,  see  note  to  "  Obligation  of 
Contracts." 

Property,  zs  applied  to  lands,  includes  "  every  species  of  title,  inchoate  or  com- 
plete," and  "  rights  which  lie  in  contract,  those  which  are  executory  as  well  as  those 
which  are  executed."  Figg  v.  Snook,  9  Ind.  202.  As  applied  to  taxation,  "  prop- 
erty "  includes  "credits."  People  v.  Worthington,  21  111.  171. 

Purchaser  includes  "mortgagee"  in  the  statutory  law  of  Kentucky.  Halbert  v. 
McCulloch,  3  Mete.  (Ky.)  456. 

Sale  and  "  gift "  distinguished.  Parkinson  v.  State,  14  Md.  184.  Whether  "  sale  " 
covers  "exchange,"  see  Cady  v.  Watertown,  18  Wise.  322;  Cleveland  v.  State  Bank 
of  Ohio,  16  Ohio,  N.  S.  236. 

Soil,  in  connection  with  mineral  rights,  is  equivalent  to  "surface."  Pretty  v. 
Solly,  26  Beav.  606. 

Subsequent  Purchasers,  in  recording  acts,  includes  purchasers  from  heirs  as  well  as 
from  ancestor.  McClure  v.  Tallraan,  30  Iowa,  515. 

Such,  in  statutes,  commented  on  in  Eastern  &c.  B.  R.  v.  Marriage,  6  H.  &  N.  931. 

Suit,  said  to  be  synonymous  with  "action,"  and  " proceeding  at  law."  Calder- 
wood  v.  Estate  of  Calderwood,  38  Vt.  171. 

Turned  Loose,  cattle  under  care  of  a  servant,  but  without  halters,  are  not.  Sher- 
born  v.  Wells,  3  B.  &  S.  784. 

Wagon.     See  Quigley  v.  Gorham,  5  Cal.  418. 


374  CONSTRUCTION  OF   PARTICULAR   WORDS. 

name  of  the  "President  and  trustees"  of  the  village,  &c.,  was 
held  improperly  commenced.  * 

Curtilage. — This  term,  which  is  peculiar  to  England,  and 
not  very  applicable  to  this  country,  has  been  held  in  Michigan 
to  embrace  a  barn  standing  eighty  feet  from  a  dwelling-house, 
in  a  yard  or  lane  with  which  there  was  a  communication  from 
the  house  by  a  pair  of  bars,  f 

Deny. — Where,  in  case  of  an  alleged  encroachment  on  the 
highway,  the  occupant  must,  within  a  limited  time  after  notice, 
deny  the  encroachment,  his  denial  must  be  in  writing.  ;£ 

Descent. — "  Descent  from  the  mother "  can  not  be  held  to 
mean  descent  from  the  maternal  grandfather.  | 

From. — The  word  "  descent  from  a  parent,"  cannot  be  con- 
strued to  mean  "  descent  through  a  parent."  ^f 

High  Seas. — This  word,  as  used  in  the  Crimes  Act  of  the 
United  States  (1825,  ch.  276,  §  22),  is  used  in  contradistinction 
to  arms  of  the  sea,  and  bays,  creeks,  &c.  within  the  narrow 
headlands  of  the  coast ;  and  comprehends  only  the  open  ocean 
which  washes  the  seacoast,  or  is  not  included  within  the  body 
of  any  county  in  any  particular  State.**  It  has  been  held  that 
by  the  same  phrase,  under  the  Act  of  30th  April,  1790,  is 
meant  any  waters  on  the  seacoast  which  are  without  the  boun- 
daries of  low- water  mark. ft 

Improvidence. — As  to  what  improvidence  is,  for  which  a 
person  will  be  held  incompetent  to  be  an  administrator,  see 
Coope  v.  Lowerre,  1  Barb.  Ch.  R.  45. 

Justifiable  Cause. — Where  an  act  declares  it  to  be  a  crime 
for  a  master  to  force  a  seaman  on  shore  in  a  foreign  port  with- 
out justifiable  cause,  these  words  do  not  mean  such  a  cause  as 
in  the  mere  maritime  law  might  authorize  a  discharge,  but  such 
a  cause  as  the  known  policy  of  the  American  laws  on  the 
subject  contemplates  as  a  case  of  moral  necessity  for  the 

*  The  President  <fe  Trustees  of  the  Village  verbal  notice  is  good,  unless  the  notice  be  a 

of  Romeo  v.  Chapman,  2  Mich.  179.  legal  proceeding,   and  then  it  must  be  in 

f  The  People  v.  Taylor,  2  Michigan,  250.  writing. 

\  Lane  v.   Gary,  19  Barb.   537.     See  to  ||  Case  v.  Wilbridge,  4  Indiana,  61. 

same  effect,  Gilbert  v.  Col.  Turnpike  Co.  3          «j[  Gardner  v.  Collins,  2  Peters,  58. 
John.  Cas.   107;   and  Matter  of  Cooper,  15          **  U.  S.  v.  Grush,  5  Mason,  290;  U.  S. 

John.  533.     In  M'Ewen  v.  Montgomery  In-  v.  Robinson,  4  Mason,  307. 
surance  Co.   5  Hill,  101,  it  was  held  that  a          ft  U.  S.  v.  Ross,  1  Gall.  624. 


CONSTRUCTION  OF  PARTICULAR  WORDS.  375 

safety  of  the  ship  and  crew,  and  the  due  performance  of  the 


Maliciously. — When  an  act  declares  it  to  be  a  crime  to  force 
a  seaman  on  shore  "  maliciously  and  without  justifiable  cause," 
the  word  maliciously  is  not  limited  to  acts  done  from  hatred, 
revenge,  or  passion,  but  it  includes  all  acts  wantonly  done,  or 
wilfully  done,  that  are  against  what  any  man  of  reasonable 
knowledge  and  ability  must  know  to  be  his  duty.f 

May  and  shall.    Shall  and  may.    Shall  or  may.  (a) — These 

*  Per  Story,  J.,  U.  S.  v.  Coffin,  1  Sumner,  394;  U.  S.  v.  Ruggles,  5  Mason,  192;  Phil- 
394.  lips'  Case,  1  Moody's  Crown  Cases,  264,  273. 

f  Per  Story,  J.,  U.  S.  v.  Coffin,  1  Sumner, 

(a)  May  and  Shall. — A  statute  providing  that  certain  public  officers,  "  if  deemed 
advisable,"  or  "if  they  believe  the  public  good  and  the  best  interests  of  the  city 
require  it,"  "may"  levy  a  certain  tax  to  pay  public  debt,  is  in  fact  peremptory 
•whenever  the  public  interests  or  individual  rights  call  for  its  exercise;  e.  g.,  where  a 
judgment  creditor  seeks  to  compel  the  levy  by  mandamus.  Supervisors  y.  U.  8.  4 
Wall.  435 ;  Galena  v.  Amy,  5  Wall.  705.  And  when  by  statute  a  county  court 
"  may  "  submit  the  question  to  the  people  before  incurring  certain  expense,  they 
must  do  so.  Steines  v.  Franklin  Co.  48  Mo.  167.  "  May  "  is  to  be  construed  "  shall " 
where  a  statute  directs  the  doing  of  a  thing  necessary  to  the  ends  of  justice.  Mitchell 
v.  Duncan,  7  Flor.  13.  "  May  "  will  be  construed  "  shall "  where  the  good  sense  of 
the  entire  enactment  requires  it ;  e .  g.,  where  a  statute  establishes  an  improvement, 
and  devolves  upon  some  one  the  doing  of  acts  requisite  to  its  completion.  People 
v.  Brooklyn,  22  Barb.  404. 

"  May"  will  not  be  construed  "  shall"  in  order  to  create  a  right,  but  will  be  so 
construed  in  order  to  enforce  a  right  already  existing ;  e.  g.,  a  person  cannot  compel 
the  granting  of  a  license  under  a  statute  merely  permissive  in  its  terms.  State  y. 
Holt  County  Court,  39  Mo.  521;  and  see  ex  parte  Banks,  28  Ala.  28,  where  by  a 
divided  court  a  provision  declaring  that  a  trial  "may"  be  removed  to  another 
county  "  on  application  of  the  defendant  duly  supported  by  affidavit,"  was  held  sim- 
ply permissive.  An  act  providing  that  the  offender  "  may  "  be  punished  for  grand 
larceny,  although  the  value  of  the  property  stolen  be  less  than  $25  (that  being  the 
general  limit  separating  grand  from  petty  larceny),  gives  a  discretion.  Williams  v. 
People,  24  N.  Y.  405.  A  statute  regulating  foreclosure  sales  under  mortgages  given 
to  a  public  fund,  provided  that  "  such  sales  may  be  in  parcels  so  that  the  whole 
amount  may  be  realized  ; "  it  was  held  that  this  provision  was  for  the  benefit  of  the 
fund  alone,  that  the*mortgagor  had  no  right  to  have  it  enforced,  and  that  "  may  " 
could  not  be  construed  "  shall."  Bansemer  v.  Mace,  18  Ind.  27.  A  statute  provid- 
ing that  offenders  "  may  "  be  tried  in  the  county  where  they  reside  or  where  they 
were  apprehended,  was  held  to  be  merely  permissive,  and  not  to  oust  jurisdiction  in 
the  county  where  th  e  offense  was  committed.  State  v.  Sweetser,  53  Me.  438.  A 
resolution  of  the  State  Legislature  was  passed  after  the  decision  in  Hepburn  v.  Gris- 
wold,  that  the  State  treasurer  "  may  "  pay  the  bonds  of  the  State  in  coin;  upon  the 
change  of  decision  by  the  Supreme  Court  by  which  no  one  had  the  right  to  demand 
payment  in  coin,  it  was  held  that  this  resolution  ceased  to  be  mandatory.  Kellogg 


376  CONSTRUCTION  OF  PARTICULAR  WORDS. 

words  have  been  a  fertile  source  of  difficulty.  In  an  early  case 
on  the  construction  of  an  English  statute,  em  powering*  church- 
wardens and  overseers  to  make  a  rate  to  reimburse  constables, 
it  was  insisted  that  the  statute  only  put  the  act  in  their  power 
by  the  word  " may"  and  did  not  require  the  doing  it  as  a 
duty.  u  Sed  non  allocatur ;  for  where  a  statute  directs  the 
doing  of  a  thing  for  the  sake  of  justice,  or  the  public  good,  the 
word  may  is  the  same  as  the  word  shall:  thus,  the  23  Hen. 
VI  says  the  sheriff  may  take  bail ;  this  is  construed  shall,  for 
he  is  compellable  to  do  so."  *  So,  under  the  acts  giving  the 
chancellor  power  and  authority  to  grant  a  commission  of  bank- 
ruptcy, it  was  held  not  to  be  discretionary,  but  dejure.^ 

This  subject  has  been  recently  much  considered  in  England 
on  the  true  construction  of  the  act  called  the  County  Courts 
Extension  Act,  which  declares  that  in  certain  cases  "  a  judge  at 
chambers  may,  by  rule  or  order,  direct  that  the  plaintiff  shall 
recover  his  costs."  The  word  may  was  here  held  not  to  be  dis- 
cretionary, but  to  mean  shall  /  and  the  court  said  that  "  when 
a  statute  confers  an  authority  to  do  a  judicial  act  in  a  certain 
case,  it  is  imperative  on  those  so  authorized  to  exercise  the 
authority  when  the  case  arises,  and  its  exercise  is  duly  applied 

*  Rex  et  Regina  v.  Barlow,  2  Salt  609.         1  Gas.  in  Eq.  Abr.  52;  2  Ch.  Cases,  143-190; 
f  Alderman  Backwell's  Case,  1  Vern.  152;     Stamper  v.  Miller,  3  Atk.  211. 

v.  State  Treasurer,  44  Vt.  356.  Where  the  statutory  provision  was  that  the  Probate 
Court  "  may  "  remove  an  executor  for  certain  specified  causes,  this  was  held  to  be 
discretionary  merely,  the  court  saying  that  the  power  to  remove  was  not  clearly  for 
the  benefit  of  the  public  nor  of  any  private  individual,  and  holding  that  this  was  the 
true  test.  Cutler  v.  Howard,  9  Wise.  309.  This  case  is  more  than  questionable. 
Adopting  the  test  laid  down,  the  court  clearly  fell  into  an  error  in  its  application, 
for  the  persons  directly  interested  in  the  estate  have  a  right  to  the  proper  adminis- 
tration of  the  trust,  and  the  power  of  removal  given  is  for  their  express  benefit. 

"  Shall "  will  be  construed  "  may  "  where  no  public  or  private  right  is  impaired 
by  such  construction  ;  e.  g.,  in  a  provision  that  the  assessment  roll  "  shall  "  be  re- 
turned within  forty  days.  Wheeler  v.  Chicago,  24  111.  105.  "  It  shall  be  lawful," 
like  "  may,"  is  only  imperative  where  the  public  are  interested,  or  where  the  public 
or  third  persons  have  a  claim  de  jure  that  the  act  shall  be  done  (Blake  v.  Ports- 
mouth, &c.  E.  R.  39  N.  H.  435) ;  otherwise  it  rests  in  sound  discretion,  as,  for 
example,  where  the  law  having  been  that  the  tax  list  should  be  delivered  to  one 
officer  for  collection,  a  subsequent  statute  provided  that  it  should  be  lawful  to  deliver 
it  to  another  officer.  Seiple  v.  Elizabeth,  3  Dutch.  407.  See  note  on  "  Directory 
Statutes." 


CONSTRUCTION   OF  PARTICULAR   WORDS.  377 

for  by  a  party  interested  and  having  the  right  to  make  the  ap- 
plication ;  that  the  word  may  is  not  used  to  give  a  discretion, 
but  to  confer  a  power  upon  the  court  and  judges, — and  the  ex- 
ercise of  such  power  depends  not  upon  the  discretion  of  the 
court  or  the  judge,  but  upon  the  proof  of  the  particular  case 
out  of  which  such  power  arises."  * 

The  Supreme  Court  of  the  State  of  New  York,  has  said 
that  where  a  statute  declares  that  a  public  officer  or  public  body 
"  may  "  have  power  to  do  an  act  which  concerns  the  public  in- 
terests or  the  rights  of  third  persons,  may  means  shall,  and  the 
execution  of  the  power  may  be  insisted  on  as  duty ;  and  so  it 
was  decided  in  regard  to  a  power  conferred  on  the  corpora- 
tion of  the  city  of  New  York,  to  repair  sewers,  <fec.f 

Thus  the  rule  that  "  may  "  is  to  be  interpreted  as  "  shall " 
or  "  must "  is  not  by  any  means  uniform ;  its  application  de- 
pends on  what  appears  to  be  the  true  intent  of  the  statute.  So^ 
in  a  case  upon  a  bank  charter,  where  it  was  said  "  that  the 
capital  stock  of  said  corporation  may  consist  of  500,000  dol- 
lars," the  Supreme  Court  of  the  United  States  said,  "  Without 
question  such  a  construction  (viz.  shall  for  may),  is  proper  in 
all  cases  where  the  Legislature  mean  to  impose  a  positive  and 
absolute  duty,  and  not  merely  to  give  a  discretionary  power." 
But  no  general  rule  can  be  laid  down  upon  this  subject,  fur- 
ther than,  that  exposition  ought  to  be  adopted,  in  this  as  in 
other  cases,  which  carries  into  effect  the  true  intent  and  object 
of  the  Legislature  in  the  enactment.  The  ordinary  meaning  of 
the  language  must  be  presumed  to  be  intended,  unless  it  would 
manifestly  defeat  the  object  of  the  provisions.  Now,  we  can- 
not say  that  there  is  any  leading  object  in  this  charter  which 
will  be  defeated  by  construing  the  word  "  may  "  in  its  common 
sense."J 

Where  the  words  of  a  statute  were  "  It  shall  and  may  be 

*  MacDougall  v.  Pafcerson,  11  C.  B.  755.  judges.     See  also  on  this  subject  The  King  v. 

This  decision  of  the  Common  Pleas  is  at  vari-  The  Mayor  of  Hastings,  1  Dowl.  <fe  Ryl.  53. 
ance  with  the  rulings  of  the  Court  of  Ex-          f  The   jJayor,  <fec.   of  N.  Y.  v.   Furze,   3 

chequer  on  the  same  act  in  Jones  v.  Harrison,  Hill,  612. 

6  Exch.  328,  2  L.  M.  <fe  P.  257,  and  Latham  v.  \  Minor  v.  Mech's  Bk.  of  Alex'a,  1  Peters, 

Spedding,  20  Law  Journal,   N.  S.  Q.  6.  302,  46,  64. 

where  the  court  held  the  grammatical  rule  to          In   the  King  v.  the  Bailiffs,  <fec.  of  Eyre, 

govern,  and  that  the  use  of  the  word  may  left  the  words  "  shall  and  may  "  were  held  to  be 

the  whole    matter    discretionary    with    the  permissive   and  not  mandatory.      Smith   on 

Statutes,  p.  726 ;  2  D.  &  R.  172. 


378  JUDICIAL    LIABILITY. 

lawful  for  the  president,  <fec.,  to  remove  a  toll-gate,"  the  words 
were  held  not  to  be  imperative,  but  that  the  removal  was  left 
to  the  discretion  of  the  company,  on  the  ground  that  may  in 
statutes  means  shall  only  in  cases  where  the  public  interest 
and  rights  are  concerned,  and  where  the  public  or  third  per- 
sons have  a  claim  dejure  that  the  power  be  exercised.* 

So  too,  where  a  statute  was  in  these  words,  "  If  any  person 
die,  &c.,  his  heirs  l  shall  or  may  '  recover  in  one  action,"  —  it  was 
held  that  they  were  not  bound  to  unite  in  one  proceeding,  but 
that  they  might  bring  several  suits,  f 

Navigate.  —  The  words  "  navigating  a  river,"  should  be  con- 
strued in  reference  to  the  understanding  of  persons  engaged  in 
the  business  of  navigation.^ 

Notice.  —  Where  a  statute  requires  service  of  a  notice  on  an 
individual,  it  means  personal  service,  unless  some  other*  mode 
of  service  is  specified.  | 

Steal.  —  The  word  "  steal  "  in  a  statute  implies  a  simple  lar- 


I  may  here  notice  a  few  miscellaneous  cases  of  general  inter- 
est. In  Alabama  it  has  been  said  that  where  a  statute  affects 
a  community,  and  requires  as  a  condition  to  its  validity  that 
something  should  be  done  before  it  goes  into  operation,  in  such 
a  case  the  act  has  no  force  or  effect  until  the  thing  required  to 
be  done  is  performed.  But  where  the  statute  affects  one  or 
more  designated  persons,  it  matters  not  whether  they  are  nat- 
ural or  artificial,  those  interested  in  the  object  of  the  act,  may 
always  dispense  with  a  preliminary  step,  and  may  claim  the 
benefit  of  its  provisions  without  requiring  the  performance  of  a 
condition  which  can  affect  themselves  alone.** 

We  have  already  had  occasion  to  notice  the  ancient  rule  of 
the  English  system,  which  holds  a  judge  exempt  from  all  re- 
sponsibility, civil  or  criminal,  for  any  act  done  or  omitted  to  be 
done  by  him  in  his  judicial  capacity.  This  rule,  however,  has 

*  The  Newburgh  Turnpike  Co.  v.  Miller,  5  \  Ruthbun  v.  Acker,  18  Barb.  393. 

John.  Ch.  R.  112.  J  Alexander  v.  The  State,  12  Texas,  540. 

f  Malcolm  v.  Rogers,  5  Cow.  188  ;  see  At-          See  Dwarris,  670,  693,  for  the  construction 

torney  General  v.  Lock,  3  Atk.  164,  where  the  of  many  particular  words  in  the  English  stat- 

words  "  shall  and  may,"  were  held  to  be  obli-  utea. 
gatory.  **  Savage  tt  al.  v.  Walshe  et  al.  26  Ala. 

\  The  People  v.  Hulse,  3  Hill,  309.  619. 


BANKING  SYSTEM  OF  NEW  YORK.  379 

been  infringed  upon  in  some  of  the  States  by  statute.  So  in 
Alabama,  the  county  court  judges  are  required  to  give  official 
bonds,  on  which  actions  at  law  will  lie  "for  any  injury,  waste, 
or  damage  sustained  in  any  estate  in  consequence  of  any  neglect 
or  omission  of  taking  good  and  sufficient  security  from  guard- 
ians, executors,  or  administrators ; "  but  under  this  statute  no 
suit  can  be  maintained  on  the  bond  for  the  failure  of  the  judge 
to  require  a  guardian  to  renew  his  bond,  or  to  give  further  se- 
curity on  account  of  the  insolvency  or  removal  of  the  original 
sureties.* 

The  Supreme  Court  of  Massachusetts  have  said,  "  That  the 
language  of  a  statute  is  not  to  be  enlarged  or  limited  by  con- 
struction, unless  its  object  and  plain  meaning  require  it."  And 
a  statute  declaring  that  in  case  a  collector  of  customs  should 
die  or  resign,  the  collector  so  resigning,  or  the  representative  of 
the  collector  so  dead,  should  divide  the  fees  with  the  successor 
in  office,  was  held  not  to  apply  to  a  collector  removed  from  of- 
fice.f 

Where  a  party  was  sentenced  on  the  6th  of  October,  1825, 
to  solitary  confinement  for  .ten  days,  and  hard  labor  for  two 
years,  and  committed  on  the  same  day,  it  was  held  that  the 
commitment  was  to  be  reckoned  as  part  of  the  term ;  for,  as  the 
liberty  of  the  subject  is  concerned,  the  statute  ought  to  receive 
a  construction  favorable  to  the  prisoner.  J 


The  Banking  System  of  New  York. — I  have  thought  it  desirable  to  compress 
into  this  note  the  principal  decisions  interpreting  and  applying  the  statutes  of 
the  State  of  New  York,  on  this  important  subject.  Prior  to  the  year  1838,  an 
act  commonly  called  the  Eestraining  Act,  1  E.  S.  589,  part  1st,  ch.  xx,  tit.  20, 
prohibited  in  New  York  under  heavy  penalties  almost  every  branch  of  banking, 
such  as  receiving  deposits,  making  discounts,  issuing  notes  for  circulation,  &c., 
to  all  persons,  associations,  institutions,  or  companies,  not  especially  authorized 
by  law.  In  consequence,  it  became  the  practice  to  grant  special  charters  con- 
ferring the  privilege  of  banking.  And  to  regulate  this  corporate  banking  so 
carried  on  under  special  charters,  a  system  of  elaborate  checks,  restraints,  and 
penalties  was  imposed ;  see  R.  S.  589,  part  i,  ch.  viii,  tit.  2,  "  Of  Moneyed  Cor- 

*  Hamilton  v.  Williams,  26  Ala.  52Y.  See  the  People  v.  Hennessey,  15  Wend, 

f  Doane  v.  Phillips,  Currier  v.  Phillips,  12  147,  for  a  case  upon  a  statute  against  embez- 

Pick.  223.  zlement  by  servants. 
\  Commonwealth  v.  Keniston,  5  Pick.  420. 


380  BANKING   SYSTEM   OF  NEW   YORK. 

porations."  Art.  1  being .  entitled,  Regulations  to  prevent  the  insolvency  of 
moneyed  corporations,  and  to  secure  the  rights  of  their  stockholders  andcreditors ; 
and  Art.  2,  Regulations  concerning  the  election  of  directors  of  moneyed  corpora- 
tions. 

The  granting  of  these  charters  in  time  became  tainted  with  favoritism  and 
abuse;  and  the  State  Convention  of  1821  inserted  in  the  Constitution  then 
framed  a  provision  requiring  the  assent  of  two-thirds  of  the  members  elected  to- 
each  branch  of  the  Legislature,  to  every  bill  creating,  altering,  &c.,  any  body 
politic  or  corporate.  Cons,  of  1821,  Art.  7,  Sec.  IX. 

This,  however,  was  not  found  sufficient  to  reach  the  root  of  the  evil.  In 
February,  1837,  the  Restraining  Act  was  in  part  repealed ;  and  on  the  18th  of 
April,  1838,  the  whole  system  was  remodeled,  and  the  business  thrown  open  to 
general  competition,  by  the  passage  of  an  act  entitled  "  An  Act  to  authorize  the 
business  of  banking,"  permitting  all  persons  on  certain  conditions  to  form  asso- 
ciations for  the  purpose  of  carrying  on  the  business.  It  has  been  a  subject  of 
great  interest  to  know  how  far  the  provisions  of  the  old  system  attach  to  the 
new;  see  Tracy  v.  Talmadge,  18  Barb.  456,  where  a  history  of  the  changes  are 
given,  per  Roosevelt,  J.  The  first  question  that  arose  was,  whether  the  asso- 
ciations formed  under  the  act  were  corporations.  In  Thomas  v.  Dakin,  22 
Wend.  9,  the  Supreme  Court  held,  that  they  possessed  all  the  essential  features 
of  corporations,  and  that  they  were  corporations ;  that  it  was  competent,  how- 
ever, for  the  Legislature  to  create  corporations  or  authorize  their  creation  by  a 
general  law;  that  the  act  of  the  18th  of  April,  1838,  was  valid  and  constitu- 
tional, on  the  assumption  that  it  received  the  assent  of  two-thirds  of  the  mem- 
bers elected  to  each  branch  of  the  Legislature,  that  being  the  majority  requisite 
to  the  valid  creation  of  a  corporation ;  and  they  also  held  that  it  would  be  pre- 
sumed to  be  thus  passed,  unless  the  fact  was  denied  by  plea ;  and  they  refused 
to  pass  on  the  question  upon  demurrer.  Nelson,  C.  J.,  dissented,  on  the  ground 
that  the  Legislature  could  not  pass  a  bill  of  this  kind  as  a  majority  bill.  In 
Warner  v.  Beers,  23  Wend.  103  (April,  1840),  the  Court  of  Errors  held  that 
the  associations  organized  under  the  general  banking  law,  and  in  conformity 
with  its  provisions,  were  not  bodies  politic  and  corporate  within  the  spirit  and 
meaning  of  the  Constitution,  and  that  the  Act  of  the  18th  of  April,  1838,  to 
authorize  the  business  of  banking,  was  constitutionally  passed,  although  it  might 
not  have  received  the  assent  of  two-thirds  of  the  members  elected  to  each 
branch  of  the  Legislature.  It  was  admitted  that  the  associations  formed  under 
the  free  banking  law  had  corporate  powers ;  and  whether  they  were  corpora- 
tions, mere  partnerships,  or  joint-stock  companies,  and  whether,  if  corporations, 
a  law  permitting  corporations  to  be  formed  ad  libitum  came  within  the  spirit  of 
a  constitutional  restriction  on  corporations  with  grants  of  exclusive  privileges, 
were  the  chief  points  discussed  in  the  Court  of  Errors.  From  the  nature  of 
that  tribunal,  however,  it  is  impossible  to  learn  the  precise  views  of  the  majority 
of  the  court  on  the  subject.  The  strongest  argument  was  probably  the  argu- 
mentum  ad  inconvenienli  growing  out  of  the  capital  already  invested  in  the  free 
banks.  See  the  result  of  the  decision  stated  in  Gillet  v.  Moody,  3  Comst.  485. 


BANKING    SYSTEM  OF  NEW  YORK.  381 

In  Purdy  v.  The  People,  4  Hill,  384,  the  case  was  whether  a  law  altering 
the  charter  of  the  city  of  New  York  was  constitutionally  passed,  it  not  having 
received  a  vote  of  two-thirds  of  the  members  of  both  houses.  The  court  de- 
cided that  the  law  was  void ;  and  language  was  used  which  has  been  often 
relied  on  as  going  to  show  that  all  corporations  being  within  the  constitutional 
prohibition,  it  necessarily  followed  that  the  banking  associations  were  not  cor- 
porations ;  but  the  only  point  really  decided  was,  that  municipal  corporations 
came  within  the  constitutional  restrictions  upon  the  creation  of  corporations. 
See  The  People  v.  Purdy,  commented  on  in  The  Supervisors  of  Niagara  v.  The 
People,  7  Hill,  510. 

In  The  Supervisors  of  Niagara  v.  The  People,  7  Hill,  504,  it  was,  however, 
finally  decided  that  the  associations  under  the  act  of  1838  were  "  moneyed  or 
stock  corporations  "  within  the  meaning  of  statutes  passed  long  anterior  to  the 
Act  of  1838,  subjecting  such  corporations  to  taxation  on  their  capital.  Senator 
Porter,  in  delivering  the  prevailing  opinion  of  the  Court,  said  it  was  obvious 
that  Warner  v.  Beers,  and  Purdy  v.  The  People,  decided  only  that  the  banking 
associations  were  not  corporations  within  the  spirit  and  meaning  of  the  State 
Constitution,  and  that  municipal  corporations  were  embraced  in  the  State  Con- 
stitution; for  the  purposes  of  the  principal  case,  he  was  of  opinion  that  the 
banking  associations  were  corporations  within  the  tax  laws.  For  that  purpose, 
however,  he  went  into  an  elaborate  investigation  of  the  principal  points  of  dif- 
ference between  corporations  and  partnerships,  and  insisted  that  the  free  banks 
were  evidently  endowed  with  a  corporate  character. 

The  decision  of  this  involved  question  may  be  stated  to  be,  that  the  free 
banking  associations  are  corporations  to  all  intents  and  purposes ;  but  that  the 
intent  of  the  State  Constitution  being  to  impose  restraints  on  special  grants  of 
privilege,  and  these  associations  being,  on  the  contrary,  a  modified  form  of  free 
banking,  they  did  not  come  within  the  spirit  of  the  Constitution,  as  if  the  consti- 
tutional clause  had  stood,  "  Corporations  shall  not  be  created  unless,  &c.,  pro- 
vided the  charters  contain  any  exclusive  grants  of  privilege."  See  Gillet^v. 
Moody,  3  Com.  485,  for  C.  J.  Bronson's  statement  of  the  result  of  the  contro- 
versy. 

The  question,  however,  still  remains,  assuming  these  institutions  to  be  cor- 
porations, how  far  they  are  subject  to  the  details  of  the  old  system  devised  to 
regulate  chartered  banks.  In  The  Matter  of  the  Bank  of  Dansville,  6  Hill,  370, 
it  was  endeavored  to  apply  to  the  free  banks  the  provisions  of  the  Revised 
Statutes  (I,  598)  which  gave  the  Supreme  Court  power,  by  summary  proceed- 
ing, to  review  the  elections  of  the  specially  chartered  institutions.  It  was 
insisted  that  the  free  bank  in  question  was  a  corporation  ;  but  the  summary  ju- 
risdiction was  denied  on  the  ground,  among  others,  that  ''  the  only  moneyed  cor- 
porations in  existence  at  the  time  those  powers  were  conferred,  were  such  as 
had  an  organization  prescribed  by  law."  A  board  of  directors  or  trustees  was 
provided  by  the  old  charters,  elected  at  stated  periods,  and  for  a  stated  time, 
and  in  a  specified  manner ;  whereas  the  general  banking  law  provided  in  terms 
for  no  other  officers  than  a  treasurer  and  cashier ;  and  it  was  said  that  it  could 


382  BANKING    SYSTEM   OF  NEW   YORK. 

not  be  supposed  that  the  Legislature  intended  the  court  should  have  a  sum- 
mary jurisdiction  over  the  contracts  upon  which  the  banking  associations  were 
organized  under  the  free  banking  law. 

In  Gillet  v.  Campbell,  1  Den.  320,  it  was  held  that  an  assignment  by  the 
president  and  cashier  of  part  of  the  effects  of  a  free  bank  exceeding  $1,000  in 
value,  did  not  come  within  the  8th  section  of  the  statute  to  prevent  the  insolv- 
ency of  moneyed  corporations,  and  that  the  assignment  was  valid,  although  not 
authorized  by  a  previous  resolution  of  the  board  of  directors.  But  the  decision 
has  been  questioned  by  the  same  learned  judge  who  delivered  it.  See  Gillet  v. 
Moody,  3  Corns.  486. 

Gillet  v.  Moody,  3  Comst.  479,  was  a  bill  filed  by  a  receiver  of  a  banking 
association  against  a  stockholder  and  director  to  set  aside  a  transfer  of  certain 
State  bonds  made  in  exchange  of  his  stock,  and  which  came  within  the  terms  of 
the  provisions  of  the  Revised  Statutes  (part  i,  ch.  xviii,  tit.  ii,  art.  1,  §  1)  de- 
claring it  unlawful  for  the  directors  of  any  moneyed  corporation  to  divide,  with- 
draw, or  in  any  manner  pay  to  the  stockholders  or  any  of  them  any  part  of  the 
capital  stock,  &c.,  or  to  reduce  the  capital  stock,  without  the  consent  of  the  Leg- 
islature, and,  it  was  held  by  the  Court  of  Appeals  that  the  banking  associations 
were  not  corporations  in  any  qualified  sense,  as  within  the  intent  and  meaning 
of  some  particular  statute,  but  corporations  to  all  intents  and  purposes ;  and 
that  the  transaction  was  illegal  and  void,  although  a  doubt  was  intimated 
whether  the  provisions  of  the  10th  section  applied  to  the  directors  personally. 
It  may  be  noticed  that  in  this  case  it  was  also  held  that  stopping  payment  by  a 
bank  is  prima  facie  evidence  of  insolvency ;  and  also  that  the  title  of  the  Re- 
vised Statutes  in  regard  to  moneyed  corporations  was  a  beneficial  statute,  not 
to  be  defeated  by  a  narrow  construction. 

Talmadge  v.  Pell,  3  Seld.  328,  was  a  bill  filed  to  set  aside  an  operation  in 
stock,  on  the  ground  that  traffic  in  stock  did  not  come  within  banking  power. 
The  transaction  was  held  illegal  on  that  ground,  and  it  was  further  held  that 
the  free  banking  associations  were  moneyed  corporations,  and  as  such  liable  to 
all  general  laws  relating  to  that  class  of  corporations,  except  in  so  far  as  those 
laws  or  some  of  their  particular  provisions  have  been  modified  or  superseded  by, 
or  are  inconsistent  with,  the  free  banking  act  of  1838. 

In  Tracy  v.  Talmadge,  18  Barbour,  456,  Mr.  Justice  Roosevelt,  who  was  in 
the  Legislature  in  1838,  and  who  is  very  familiar  with  the  whole  matter,  said, 
speaking  of  this  subject,  "The  only  question  is,  Did  the  Legislature,  in  forming 
these  associations,  or  rather  in  authorizing  their  self-formation,  intend  that  cer- 
tain penal  provisions  of  law  previously  enacted  to  govern  the  action  of  char- 
tered banks,  undisputed  corporations,  should  apply  to  these  new  forms  of  lim- 
ited partnership ;  and  is  that  intention,  if  entertained  by  the  law-making  power, 
expressed  in  a  manner  so  clear  as  to  require  no  implication  or  interpretation  to 
discover  it? — the  rule  being  inflexible,  and  as  just  as  it  is  inflexible,  that  penal 
enactments  when  not  perfectly  clear  admit  of  no  extension  by  judicial  interfer- 
ence." 

I  have  no  room  for  a  discussion  of  the  question  ;  but  considering  the  differ- 


BANKING   SYSTEM  OF  NEW   YORK.  383 

ences  between  the  organization  of  the  old  safety -fund  banks,  as  they  were  called, 
and  the  free  banks,  it  must  be  admitted  that  the  precise  extent  to  which  the 
provisions  of  the  Revised  Statutes  are  to  be  applied  to  the  new  institutions,  and 
especially  to  their  officers,  is  still  unsettled. 

Since  writing  the  above  note,  and  while  this  sheet  is  passing  through  the 
press,  I  have  received  a  work  specially  devoted  to  "  The  Banking  System  of 
New  York,"  for  which  I  am  indebted  to  the  kindness  of  the  learned  author,  John 
Cleaveland,  Esq.  The  volume  contains  a  vast  quantity  of  information,  both  of 
a  legal  and  historical  character,  which  is  nowhere  else  to  be  found  collected,  and 
must  undoubtedly  prove  of  great  value  to  all  persons,  whether  in  or  out  of  this 
State,  who  occupy  themselves  in  any  way  with  matters  relating  to  this  most 
important  branch  of  finance.  Mr.  Cleaveland's  long  familiarity  with  this  par- 
ticular subject,  his  devotion  to  his  profession,  and  his  reputation  as  an  accurate 
jurist,  are  sufficient  guaranties  in  regard  to  the  execution  of  the  work. 


CHAPTER    IX. 

OF  THE  INTERPRETATION  AND  APPLICATION  OF  TREATIES,  OF  PAT- 
ENTS OR  GRANTS  OF  LAND,  AND  OF  MUNICIPAL  ORDINANCES. 

Treaties. — Part  of  the  Supreme  Law  of  the  Union. — How  far  they  affect  State  Legis- 
lation.— How  far  they  may  have  a  Retrospective  Effect. — Patents  or  Grants  of 
Land. — Resumptions  of,  in  Early  Times. — Rules  of  Construction  Applicable  to 
Municipal  Ordinances. — Centralization  and  Local  Sovereignty. — Instance  of  the 
Former  in  Rome  and  France. — Development  and  Application  of  the  Latter  in 
America. — Towns  and  Cities. — Delegation  of  Legislative  Sovereignty. — Mode  of 
the  Exercise  of  the  Delegated  Authority. — Cases. — General  Authority  of  the 
Courts.— Contracts  in  Violation  of  Ordinances  Void. — Passage  of  Ordinances. 

IN  treating  of  the  interpretation  and  application  of  written 
law,  -we  have  thus  far  considered  the  exercise  of  legislative 
power  in  regard  to  the  enactment  of  statutes,  in  cases  in  which 
that  power  is  unrestrained  by  any  paramount  or  fundamental 
law.  Before  passing  to  the  subject  of  constitutional  limitations 
upon  legislative  action,  we  have  to  examine  some  topics  which 
are  so  intimately  connected  with  our  general  subject,  that  they 
cannot  with  propriety  be  omitted.  Treaties,  Patents  or  Grants 
of  Land,  and  Municipal  Ordinances,  form  a  part  of  our  written 
law,  and  are  all  in  some  respects  governed  by  considerations  and 
rules  of  the  same  kind  as  those  which  apply  to  statutes.  • 

Treaties. — The  Constitution  of  the  United  States*  declares 
that  all  treaties  made  or  to  be  made  under  the  authority  of  the 
United  States,  shall  from  a  part  of  "  the  supreme  law  of  the 
land;"  and  the  construction  of  these  instruments  thus  neces- 
sarily enters  into  the  scope  of  this  work.  The  subject  has  been 
so_ fully  discussed  by  writers  on  international  law,  that  any  elab- 
orate examination  of  it  here  would  be  out  of  place.  Some  brief 
observations  must,  however,  be  made. 

The  effect  produced  by  the  grant  of  the  treaty-making  power 

*  Art.  6,  §  2. 


TREATIES.  385 

to  the  Federal  Government,  and  by  the  recognition  of  treaties 
as  a  part  of  the  supreme  law,  is  very  important  in  regard  to 
questions  affecting  State  sovereignty  and  vested  rights  of  prop- 
erty. Thus,  it  has  even  been  intimated  that  the  stipulations 
in  the  treaty  of  peace  between  the  United  States  and  England, 
of  1783,  were,  in  regard  to  the  confiscation  laws,  paramount  to 
the  Constitution  of  Pennsylvania.* 

It  has  been  insisted  that  the  Federal  Government  had  no 
power  to  make  a  treaty  that  could  operate  to  annul  a  legislative 
act  of  any  of  the  States,  or  to  destroy  vested  rights ;  but  the 
contrary  has  been  expressly  decided.  So,  it  has  been  held  that 
the  treaty  of  peace  of  1783  with  England  repealed  an  act  of  the 
Legislature  of  Virginia,  of  1777,  concerning  sequestrations  and 
forfeitures,  and  that  a  suit  might  be  brought  for  the  recovery 
of  a.  debt,  though  it  was  barred  by  the  State  law.f  So  again 
in  New  York,  a  State  statute  inconsistent  with  a  treaty  has 
been  held  to  be  repealed  by  it.  J 

It  has  even  been  decided  that  a  treaty  may  operate  retro- 
spectively, so  as  to  destroy  rights  not  only,  vested,  but  fixed  by 
judicial  action.  In,  1800,  an  American  ship  captured  a  French 
schooner,  and  a  decree  of  condemnation  was  pronounced  by  the 
Circuit  Court  on  the  23d  of  September,  1800.  Pending  a  writ 
of  error,  on  the  21st  of  December  1801,  a  convention  was  rati- 
fied with  France,  by  which  it  was  agreed  that  all  property  cap- 
tured should  be  mutually  restored.  The  Supreme  Court  held 
that  they  were  as  much  bound  by  a  treaty  as  by  an  act  of  Con- 
gress, and  reversed  the  judgment  on  this  ground  alone ;  and 
Marshall,  C.  J.,  said, 

The  Constitution  of  the  United  States  declares  a  treaty  to  be  the  supreme 
law  of  the  land.  Of  consequence,  its  obligation  on  the  courts  of  the  United 
States  must  be  admitted.  *  *  It  is  in  the  general  true  that  the  province  of  an 
appellate  court  is  only  to  inquire  whether  a  judgment  when  rendered  was  er- 
roneous or  not.  But  if  subsequent  to  the  judgment,  and  before  the  decision  of 
the  appellate  court,  a  law  intervenes  and  positively  changes  the  rule  which 
governs,  ths  law  must  be  obeyed  or  its  obligation  denied.  It  is  true  that  in 
mere  private  cases  between  individuals,  a  court  will  and  ought  to  struggle  hard 
against  a  construction,  which  will,  by  a  retrospective  operation,  affect  the  rights 

*  Lessee   of  Henry   Gordon  v,   Kerr,    1  \  Denn   ex   dem.   Fisher   v.  Harnden,  1 

Wash.  C.  C.  R.  323.  Paine  C.  C.  R.  54. 

f  Ware  v.  Hylton,  3  Dall.  236. 
25 


386  TREATIES. 

of  parties;  but  in  great  national  conceins  where  individual  rights  acquired  by 
•war  are  sacrificed  for  national  purposes,  the  contract  making  the  sacrifice  ought 
always  to  receive  a  construction  conforming  to  its  manifest  import;  and  if  the 
nation  has  given  up  the  vested  rights  of  its  citizens,  it  is  not  for  the  court  but 
for  the  Goveiment  to  consider  whether  it  be  a  case  proper  for  compensation.  In 
such  a  case  the  court  must  decide  according  to  existing  laws,  and  if  it  be  neces- 
sary to  set  aside  a  judgment,  rightful  when  rendered,  but  which  cannot  be  af- 
firmed but  in  violation  of  law,  the  judgment  must  be  set  aside.* 

On  the  other  hand,  in  regard  to  the  effect  of  the  war  of  1812, 
with  England,  on  the  treaty  of  1794,  with  that  country,  it  has 
been  determined  by  the  Supreme  Court  of  the  United  States, 
without  deciding  the  general  point  whether  treaties  in  all  cases 
become  extinguished  ipso  facto  by  war,  that  the  termination  of 
a  treaty  even  if  effected  by  war,  cannot  divest  rights  of  property 
already  vested  under  it.  "  If  real  estate,"  said  the  court,  "  be 
purchased  or  secured  under  a  treaty,  it  would  be  most  mischiev- 
ous to  admit  that  the  extinguishment  of  the  treaty  extinguished 
the  right  to  such  estate.  In  truth,  it  no  more  affects  such  rights, 
than  the  repeal  of  a  municipal  law  affects  rights  acquired  under 
it.  If,  for  example,  a  statute  of  descents  be  repealed,  it  has  never 
been  supposed  that  rights  of  property  already  vested  during  its 
existence  were  gone  by  such  repeal.  Such  a  construction  would 
overturn  the  best-established  doctrines  of  law,  and  sap  the  very 
foundation  on  which  property  rests."f 

A  treaty  is  in  many  cases  merely  a  contract,  and  not  a  legis- 
lative act ;  in  cases  of  this  kind  it  addresses  itself  to  the  polit- 
ical, not  to  the  judicial  department ;  and  the  Legislature  must 
execute  the  contract  before  it  can  become  a  rule  for  the  court.  ;£ 
But  there  are  many  other  cases  where  the  treaty  is  to  be  regarded 
not  as  a  contract  but  as  a  rule;  and  in  these  cases  it  has  the 
effect  of  an  act  of  the  Legislature.  | 

It  is  important  to  notice  the  rule  that  in  the  construction  of 
this  class  of  documents  the  judiciary,  in  one  respect,  do  not  oc- 
cupy the  same  position  nor  hold  the  same  language  that  they  do 
in  regard  to  other  matters  of  written  law.  Whenever  the  nation, 
by  its  properly  constituted  agents  has  declared  its  interpreta- 

*  IT.  S.  v.  Schooner  Peggy,  1  Cranch,  109.  314;    see    United   States  v.   Percheman,    *7 

\  Society,  <fec.  T.  New  Haven,  8  Wheat.  Peters,  51. 

494.  \  United  States  v.  Arredondo,  6  Peters, 

J  Foster   &  Elam  v.  Neilson,   2  Peters,  735. 


PATENTS  OF   LAND.  387 

tion  of  a  treaty,  that  interpretation  becomes  binding  on  the 
courts.  The  Supreme  Court  of  the  United  States  has  said, 
"  However  individual  judges  might  construe  a  treaty,  it  is  the 
duty  of  the  court  to  conform  itself  to  the  will  of  the  Legislature, 
if  that  will  has  been  clearly  expressed ;  the  courts  cannot  pro- 
nounce the  course  of  their  own  nation  erroneous."  *  (a) 

Grants  or  Patents  of  Land. — The  doctrine  of  the  English 

.  v  O 

law  is,  that  the  king  was  the  original  owner  of  all  the  land  in  the 
kingdom,  and  that  the  crown  is  the  only  source  of  title.  We 
declare  and  apply  the  same  principle  in  regard  to  our  repub- 
lican government;  and  it  is  our  fundamental  rule  that  all 
individual  title  to  land  within  the  United  States  must  derive 
either  from  the  grants  of  our  own  local  State  or  territorial  gov- 
ernments, or  from,  that  of  the  United  States,  or  from  royal  govern- 
ments established  here  prior  to  the  Revolution,  or  from  the  En- 
glish Crown.f  Grants  or  patents  of  land,  therefore,  emanating  as 
they  do  directly  from  the  sovereign  power,  though,  like  charters 
of  incorporation,  they  are  in  some  respects  mere  private  instru- 
ments, in  other  respects  they  so  largely  affect  public  interests 
as  to  approach  the  dignity  of  statutes,  and  cannot  with  propri- 
ety be  altogether  omitted  in  a  work  like  the  present. 

The  tenure  by  grant  or  patent  from  the  crown  in  early 
times,  partook  of  the  precarious  character  which  then  attached 
to  all  political  power.  A  pretext  or  a  reason  being  found  in  the 
allegation  that  the  liberality  of  the  Government  was  abused  or 
misapplied,  these  grants  were  frequently  resumed,  sometimes  by 
the  executive,  sometimes  by  the  legislative  branch.  There  are 
cases  of  the  same  kind  in  the  colonial  periods  of  this  country ; 

*  Foster  el  al.   v.  Neilson,  2  Peters,  253,  but  they  do  not  fall  strictly  within  the  prov- 

307,  a  case  upon  the  construction  of  the  treaty  ince  of  this  work,  and  a  notice  of  them  would 

of  San  Ilclefonso  of  1st  Oct.  1800.     But  see  swell  this  volume  far  beyond  its  intended 

Wilson  v.  Wall,  6  Wall.  83.  limits. 

Many  cases  have  been  decided,  both  in  the  f  See  2  Black.  Com.  51-59,  86,  and  105; 

Supreme  Court  of  the  United  States,  and  in  see  also  Kent  Com.  part  vi,  ch.  li,  vol.  iii,  p. 

courts  of  the   several  States,  upon  the  con-  378. 
struction   of    particular   treaty   stipulations; 

(a)  That  rights  acquired  by  treaty  cannot  be  affected  by  acts  of  Congress,  and 
that  State  courts  are  not  governed  in  their  construction  of  treaties,  by  the  interpre- 
tation given,  and  acted  on  by  other  departments  of  the  Government,  see  Wilson  v. 
Wall,  34  Ala.  288 ;  and  see  s.  c.  6  Wall.  83.  Treaty  rights  of  Indians  cannot  be  af- 
fected by  State  legislation.  Fellows  v.  Denniston,  23  N.  Y.  420. 


388 


PATENTS   OF   LAND. 


and  their  history  in  both  instances  bears  strong  traces  of  that 
want  of  a  proper  understanding  of  the  true  limits  of  the  law- 
making  power,  and  of  those  loose  notions  of  the  sacredness  of 
vested  right,  from  the  influence  of  which  we  are  not  yet  alto- 
gether emancipated.* 

the  provisions  for  the  purpose  to  a  money  bill, 
so  as  to  render  it  impossible  for  the  Lords  even 


*  See  A  Discourse  upon  Grants  and  Re- 
sumptions;  showing  how  our  ancestors  have 
proceeded  with  such  ministers  as  have  procured 
to  themselves  grants  of  the  crown  revenue  ; 
and  that  the  forfeited  estates  ought  to  be  applied 
towards  the  payment  of  the  public  debts.  By 
the  author  of 'the  Essay  on  Ways  and  Means  : 
^London,  1700.  It  is  a  history  of  various  re- 
sumptions of  crown  grants,  cited  as  authori- 
ties for  the  resumption,  then  proposed,  of  the 
Irish  grants.  This,  which  is  one  of  the  most 
recent  instances  of  the  vicious  exercise  of 
legislative  power  in  England  in  disregard  of 
private  right  on  a  large  scale,  deserves  more 
particular  notice. 

The  estates  of  the  adherents  of  James  II, 
in  Ireland,  were,  upon  the  triumph  of  Wil- 
liam III,  forfeited  to  the  crown,  and  distrib- 
uted by  him  among  his  favorites,  male  and 
female,  in  the  shape  of  grants.  A  strong 
opposition  to  the  government  existed  in  Par- 
liament ;  they  laid  hold  on  this  abuse,  as  they 
considered  it,  of  the  royal  power ;  a  bill  was 
introduced  into  the  Commons  to  resume  the 
grants,  tacked  to  a  bill  of  supply,  in  that  way 
forced  through  the  Lords,  and,  notwithstand- 
ing the  great  reluctance  and  indignation  of 
the  king,  became  a  law.  Smollett's  Hume, 
ch.  vi,  §§  25,  26  ;  Lord  Campbell's  Chan.  vol. 
iv,  pp.  146,  '7.  In  order  to  do  justice  to  pur- 
chasers and  creditors,  or  rather  to  mitigate 
the  injustice  of  the  act,  trustees  were  appoint- 
ed to  hear  and  determine  all  claims  ;  and 
they  were  also  empowered  to  sell  the  lands 
to  the  best  purchaser,  and  the  proceeds  were 
appropriated  to  the  army  arrears.  The  act 
is  the  11  and  12  William  III,  c.  2,  and  is  en- 
titled, an  act  for  granting  an  aid  to  his  maj- 
esty by  sale  of  the  forfeited  and  other  estates 
and  interests  in  Ireland,  and  by  a  land  tax  in 
England  for  the  several  purposes  therein 
mentioned  of  two  shillings  in  the  pound. 

Speaking  of  this  transaction,  Mr.  Hallam 
says,  ''  that  as  the  grants  had  been  made  in 
the  exercise  of  a  lawful  prerogative,  it  is  not 
easy  to  justify  the  act  of  resumption  passed 
in  1699.  The  precedents  for  the  resumption 
of  grants  were  obsolete  and  from  bad  times. 
*  *  Acts  of  this  kind  shake  the  general 
stability  of  possession,  and  destroy  that  con- 
fidence in  which  the  practical  success  of  free- 
dom consists,  that  the  absolute  power  of  the 
Legislature,  which  in  strictness  is  as  arbitrary 
in  England  as  in  Persia,  will  be  exercised  in 
conformity  with  justice  and  lenity.  *  * 
There  can  be  no  doubt  that  the  mode  adopted 
by  the  Commons  of  tacking,  as  it  was  called, 


to  modify  them  without  depriving  the  king  of 
his  supply,  tended  to  subvert  the  Constitution 
and  annihilate  the  rights  of  a  co-equal  House  of 
Parliament.*  *  If  the  Commons  have  desisted 
from  encroachments  of  this  kind,  it  must  be 
attributed  to  that  which  has  been  the  great 
preservative  of  the  equilibrium  in  our  govern- 
ment, the  public  voice  of  a  reflecting  people 
averse  to  manifest  innovation,  and  soon  of- 
fended by  the  intemperance  of  factions." — 
Const.  Hint.  vol.  iii,  ch.  15,  §  192/3. 

A  striking  case  of  the  same  disregard  of 
private  rights  occurs  about  the  same  time  in 
the  history  of  the  colony  of  New  York. 

An  act  of  the  Colonial  Assembly  of  New 
York,    entitled,    an    act  "  for   the  vacating, 
breaking,   and   annulling    several    grants   of 
land  made  by  Colonel  Fletcher,  the  late  gov- 
ernor of  this  province  under  his  majesty," 
passed  the  12th  of  May,  1699,  recites  in  the 
preamble  that,  "  their  excellencies,  the  lords 
justices  of  England  have,  by  their  instruc- 
tions unto  his  excellency  the  governor,  bear- 
ing date  the  10th  day  of  November,  1698, 
directed  his  said  excellency  to  use  all  legal 
measures  for    the  breaking  of   extravagant 
grants  of  lands  in  this  province."     It  then 
goes  on   to  recite  eight  grants  to  Godfrey 
Dellius,  Dellius  and  others,  Nicholas  Bayard, 
John  Evans,  The  Churchwardens,  <fcc.,  of  Trin- 
ity  Church,  and  Caleb  Heathcote ;  declares 
them  all  extravagant,  within  the  meaning  of 
the  lords  justices'  instructions  ;  breaks/vacates, 
and  annuls  them,  and  directs  the   records  to 
be  obliterated,  and  declares  the  crown  to  be 
reseized    and    possessed    of    the    premises. 
Whatever    may   be   thought  of  the  right  to 
annul  these  grants  ;  as  to  their  extravagance 
a  notion   may  be   formed  from  the  first  to 
Godfrey  Dellius.  which  contained  about  sev- 
enty miles  on  the  Hudson  river,  by  twelve 
broad,  at  the  reserved  rent  of  one  raccoon  skin 
per  annum  !     Van  Schaick's  Laws,  vol.  i,  pp. 
31  and  51.     This  act  was  repealed  on  the  27th 
of  November,  1702,  and  the  repealing  act  was 
itself  repealed,  or  rather  disapproved  by  the 
queen  on  the  26th  of  June,  1708.     The  act  of 
1699  also  contained  a  clause  that  it  should 
not  be  in  the  power  of  the  provincial  govern- 
ors to  grant  or  demise  certain  lands  for  any 
longer  period  than  for  their  own  time  in  the 
government,  and  in  regard  to  this,  in  Bogar 
dus  v.  Trinity  Church,  4  Sandf.  Ch.  R.  737,  it 
was  contended  that  the  effect  of  the   repeal 
or   disapproval  of  the   repealing  act  was  to 


PATENTS    OF   LAND.  389 

I  have  said  that  the  Governments  of  the  Union  and  of  the 
States  have  succeeded  to  the  right  of  the  British  sovereign  in 
the  public  lands.  That  right  was  frequently  exercised  during 
the  colonial  power,  and  many  titles  grow  out  of  royal  grants  or 
patents.  In  regard  to  these,  it  has  been  said  that  in  England 
nothing  passes  as  against  the  crown  by  implication,  and  that 
royal  grants  are  always  to  be  strictly  construed.*  But  we  have 
already  had  occasion  to  notice  that  on  this  subject  the  cases  are 
somewhat  conflicting.  In  regard  to  this  rule  of  strict  construe- 

O  O 

tion,  so  far  as  it  exists,  the  Supreme  Court  of  the  United  States 
has  said  that  "  the  decisions  and  authorities  on  this  point  apply 
properly  to  a  grant  of  some  prerogative  right  to  arj.  individual 
io  be  held  by  him  as  a  purchase,  and  which  is  intended  to  be- 
come private  property  in  his  hand.  For  instance,  the  grant  to 
an  individual  of  an  exclusive  fishery  in  any  portion  of  it,  is  so 
much  taken  from,  the  common  fund  intrusted  to  his  care  for  the 
common  benefit.  In  such  cases,  whatever  does  not  pass  by  the 
grant  still  remains  in  the  crown  for  the  benefit  and  advantage 
of  the  whole  community.  Grants  of  that  description,  are  there- 
fore construed  strictly."  f 

There  are  in  the  State  of  New  York,  many  grants  from 
colonial  governors,  which  have  been  upheld  to  pass  the  land  under 
water  if  within  the  grant,  on  the  ground  that  the  king  of  En- 
gland was  originally  the  proprietor  of  the  soil  under  navigable 
waters ;  that  his  title  extended  to  the  province  of  New  York ; 

undo  all  that  had  been  done   while  the  re-  I  ought  not  to  close  this  long  note  without 

pealing  law  continued  in   force ;  but  it  was  saying  that  my  attention  has  been  drawn  to 

held  not  to  be    so.     "  Such  a  rule    of   con-  the  subject  of  it  by  the  kindness  of  my  very 

struction,"   said    Mr.  V.   C.   Sandford,   "  ap-  learned  friend,  M.  S.  Bidwell,  Esq. 

piled    to    private  rights,  would  be  deemed  *  Banne  Case,   Davies   Rep.   157;    Jura 

most     tyrannical,     arbitrary,     and     unjust.  Coronae,177;   7  Conn.  R.  200. 

For    instance,  we  have  an   act  of  Congress  See  also  Charles  River  Bridge  v.  Warren 

requiring  a  residence  of  five  years  to  entitle  Bridge,  11  Peters,  420. 

an  alien  to  naturalization.       Suppose    that  \  Martin  et  al,  v.  Waddell,  16  Peters,  367, 

Congress  at  its  late  session  had  repealed  this  411. 

law,  and  enabled  aliens  at  once  to  become  But  with  great  deference  for  that  high 

citizens,   and   an   alien    now    arriving    here  tribunal,  it  is  to  be  doubted  whether  this  be 

should  jtake  the  necessary  oaths,  become  a  the  origin  of  the  rule.     In  the  times  when  it 

citizen  and  purchase  lands,  and  at  the  next  originated, '  here  was  but  little  regard  for  the 

session  of  Congress  the  act  of  the  late  session  interest  of  the  community,  little  respefct  paid 

should  be  repealed, — would  not  the  doctrine  to  private  rights  where  they  came  in  conflict 

that  thereby  all  that  was  done  under  the  stat-  with  the   Government,  and   the  profoundest 

ute  while   it  existed  was  avoided,  be  deemed  deference  for  the  royal  power  and  dignity. 

monstrous  and  absurd  ?    The  principle  is  the  It  is  rather  in  the  old  feudal  notions  of  this 

same   in   respect  of  the  repeal   act  of  1702.  class  that  the  doctrine  will,  I  think,  be  found 

Rights  acquired  under  it  prior  to  the  queen's  to  have  originated. 

disapproval  were  as  valid  and  effectual  as  if 

the  act  of  1699  had  never  been  enacted." 


390  PATENTS  OF  LAND. 

that  he  had  power  to  grant  such  title  to  a  subject;  and  that  the 
power  was  delegated  to  the  colonial  governor,  as  the  immediate 
representative  of  his  sovereign.*  And  in  cases  of  this  kind 
the  conveyance  of  land  by  the  sovereign  authority  invests  the 
grantees  with  the  requisite  power  to  take  and  hold  them.f 

The  subject  of  grants  or  patents  of  land  is  still  one  of  great 
importance  in  this  country.  Vast  districts  of  land  still  belong, 
in  this  country,  in  fee  simple  to  the  Goverment  of  the  United 
States.  Other  tracts  belong  to  the  separate  States.  The  legis- 
lative bodies  exercising  the  power  of  these  sovereignties,  which 
have  succeeded  to  the  rights  of  the  British  Crown, J  have  ap- 
pointed cejrtain  public  officers  to  sell  and  grant  these  lands,  and 
have  provided  many  forms  and  checks  to  secure  regularity  and 
to  protect  equally  the  public  and  private  rights.  But  the 
general  principle  is,  that  when  these  proceedings  are  consummated 
by  a  grant  the  earlier  steps  can  no  longer  be  inquired  into,  and 
that  in  the  absence  of  fraud  a  good  title  is  acquired.  The 
patent  or  grant  establishes  the  fact  of  every  prerequisite  having 
been  performed.  | 

In  New  York  it  is  now  declared  (1  K.  S.  198,  part  i,  chap, 
ix,  title  5,  art.  1),  that  the  commissioners  of  the  land  office  shall 
have  the  general  care  and  superintending  of  all  lauds  belonging 
to  the  State,  the  superintendence  whereof  is  not  vested  in  some 
other  office  or  board ;  and  they  have  also  the  power  to  direct 
the  granting  of  the  unappropriated  lands  of  the  State  according 
to  the  directions  from  time  to  time  to  be  prescribed  by  law.  This 
includes  the  power  to  grant  lands  under  the  waters  of  navigable 
waters  or  lakes.  1"  The  New  York  statute  provides  that  every  ap- 

*  Gould  v.  James,  6  Cowen,  396  ;  Rogers  Pickett  v.  Dwight  et  al.  4  Cranch,  421 ;    Bod- 

v.  Jones,  1  Wend.  237 ;   The  People  v.  Scher-  ley  and   others   v.   Taylor,  5   Cranch,    191; 

merhorn,  19  Barb.  540.  Massie    v.   Watts,   6   Cranch,    148 ;    Blunt's 

f  Goodel  v.  Jackson,  20  J.  R.  706 ;  Jack-  Lessee  v.  Smith  and  others,  7  Wheat.   248 ; 

son  v.  Lervey,  5  Cowen,  397  ;    North  Hemp-  Boardman  and  others  v.  The  Lessees  of  Reed 

stead  v.  Hempstead.  2  Wend.  109.  and  Ford  et  al.  6  Peters,  328  ;    Bagnell  et  al. 

1  Martin  v.  Waddell,  19  Peters,  367.  v.    Broderick,    13    Peters,   436;     The   Phila- 

I  Polk's  Lessee  v.  Wendell  et  al.  9  Cranch,  delphia  and  Trenton  Railroad  Co.  v.  Stimp- 

87 ;    Polk's  Lessee  v.  Wendell  et  al.  5  Wheat,  son,  14  Peters,  448  ;    Brush  v.  Ware  et  al.  15 

293;    Bouldin  V.  Massie's  Heirs,   7   Wheat.  Peters,   93;    Stoddard  et  al.  v.  Chambers,  2 

122,  149  ;    Stringer  et  al.  v.  Lessee  of  Young  Howard  U.  S.R.   284;  The  People  v.  Mauran, 

et  al.  3  Pet.  320,  340;     Patterson  v.  Winn,  11  5  Denio,  389;  Jackson  v.   Marsh,  6  Cowen, 

Wheat.  380;    Patterson  v.  Jenks  et  al.  2  Pet.  281 ;    See  Mr.  Blackwell's  able  work  on  Tax 

227;   Sampeyreac  and  Stewart  v.  The  United  Titles,  p.  99. 

States,  7  Peters,   222 ;    New  Orleans  v.  The  If  1   R.  S.   208,  part  i,  chap,  ix,  title  5, 

United  States,   10  Peters,  662 ;    Pollard  and  art.   4 ;     Gould    T.   James,    6  Cowen,   369 ;. 


GRANTS   OF  LAND.  391 

plicant  for  a  grant  of  land  under  water  shall,  previous  to  his  appli- 
cation, give  notice  thereof,  by  newspaper  advertisement,  for  six 
weeks ;  and  it  has  been  held  that  this  preliminary  notice,  directed 
by  the  statute,  is  absolutely  necessary  to  confer  jurisdiction  of  any 
particular  case  on  the  commissioners,  and  that  without  it  any 
grant  by  them  is  void.*  No  grant  of  land  under  water  can  be 
made  to  any  person  other  than  the  proprietor  of  the  adjacent 
land,  and  every  such  grant  that  shall  be  made  to  any  other  per- 
son shall  be  void  ;  and  it  has  been  decided  that  ejectment  will 
lie  for  the  interest  conveyed  by  these  State  grants  of  land  under 
water. f  The  statute  requires  that  letters  patent  shall  contain 
an  exception  and  reservation  to  the  people  of  the  State  of  all 
gold  and  silver  mines ;  J  but  the  omission  of  this  reservation 
does  not  vitiate  the  letters  patent.  The  authority  of  the  com- 
missioners maybe  executed  by  their  issuing  letters  patent  under 
the  seal  of  the  State ;  -or  the  commissioners  may  grant  land  under 
their  own  seals.  || 

Where   the  Legislature  authorizes   owners  of  lands  on  the 

O 

shore  of  a  river  or  sea  to  fill  up  and  dock  out  in  front  of  their 
lands  to  a  designated  exterior  line,  the  shore  being  irregular  and 
crooked,  and  the  exterior  line  straight,  questions  of  difficulty 
have  presented  themselves  as  to  the  relative  share  of  the  pro- 
prietors in  the  new  front ;  the  Superior  Court  of  New  York  has 
declared  that  the  following  rule,  previously  applied  by  the 
Supreme  Court  of  Massachusetts  to  the  formation  of  alluvial  de- 
posits on  a  river  is  sound  and  just :  ^f — (1)  Measure  the  bank  or 
line  of  the  river  opposite  to  the  newly-formed  line,  and  compute 
how  many  rods,  yards,  or  feet  each  proprietor  owns  on  the 

Rogers  v.  Jones,  1  "Wend.  237;  The  People  v.  f  1  R.  S.  ut  supra;   Champlain  and  St. 

Schermerhorn,  19  Barb.  S.  C.  R.  540.  Lawrence  R.  R.  v.  Valentine,  19  Barb.  484. 

*  People  Y.  Schermerhorn,  19  Barb.  540.  See  Furman  v.  The  City  of   New  York, 

We  have  already  seen  that  a  somewhat  anal-  5  Sandf.  16,  as  to  grants  of  land  under  water 

ogous  provision  in  regard  to  application  to  by  the   corporation  of  that   city.      The   act 

the  Legislature,  has  been  held  to  be  merely  authorizing  the   corporation  to   make    these 

directory.     Ante,  p.   53.     Smith  v.  Heltner,  grants  was  based  on  the  petition  of  the  city 

7  Barb.  p.  416,  and  the  People  v.  Mauran,  5  government;    and  the  preamble  of  the  act  re- 

Denio,  389,  decide  also,  that  the  notice  is  not  ferred  to,  and  in   part  recited,  the  petition, 

essential,  on  the  ground  that  omnia  solemnia  It  was  held  that  both  the  preamble  and  the- 

presumuntur  rite  acta,  and  on  the  general  doc-  petition  might  be  referred  to,  to  remove  am- 

trine  which  makes   State   grants    conclusive  biguities  in  the  act. 
evidence  of  the  correctness  of  the  previous          i  1  R.  S.  p.  198,  §  5,  ut  supra. 
proceedings.     This  rule  we  have  already  had  ||  The  People  v.  Mauran,  5  Denio,  p.  389. 

occasion  to  notice.  T[  Deerfield  v.  Ames,  17  Pick.  45  ;      ' 

nel  v.  Kelsey,  4  Sandf.  202. 


392  MUNICIPAL   ORDINANCES. 

original  river  line  ;  (2)  then  let  the  number  of  feet  or  rods  on 
the  newly-formed  line  to  which  each  proprietor  is  entitled,  hear 
the  same  proportion  to  the  number  he  owns  on  the  old  line,  as 
the  whole  length  of  the  new  line  bears  to  the  whole  length  of 
the  old.  This  principle,  however,  could  not  be  applied  if  the 
whole  line  were  not  to  be  adjusted,  but  only  a  boundary  be- 
tween two  conterminous  proprietors.  This  latter  case  has  been 
considered  both  in  Maine  and  in  New  York ;  but  as  the  matter 
is  one  of  detail,  I  refer  to  the  cases.* 

Municipal  Ordinances. — The  remaining  branch  of  this  por- 
tion of  our  subject  is  one  of  much  interest  in  many  points  of 
Tiew,  and  especially  in  this  country.  In  the  application  of  au- 
thority and  intelligence  to  the  administration  of  public  affairs, 
two  great  systems  have,  from  'the  earliest  times,  divided  the 
minds  of  men, — centralization,  and  local  or  distributed  power. 
With  reference  to  our  peculiar  system,  we  sometimes  call  the 
latter  local  sovereignty.  Of  the  former,  or  the  concentration  of 
authority  in  one  single,  central  head  and  hand,  in  the  Old  World 
Imperial  Rome  presents  the  greatest  exemplar.  In  the  modern 
world,  France  offers  the  most  favorable  specimen.  This  sys- 
tem, by  whatever  name  the  government  be  called,  republic, 
monarchy,  or  empire,  and  whether  nominally  administered  by 
a  consul,  a  king,  or  an  emperor,  is  practically  a  despotism.  Its 
essential  idea  is  complete  subordination  of  all  interests  to  the 
predominance  of  a  single  will.  Under  some  circumstances, 
under  certain  conditions,  when  by  some  rare  fortune  virtuous 
intentions,  moderation,  and  intelligence  inspire  and  actuate  the 
master,  such  a  system  may  result  in  that  tranquility  and  pros- 
perity whicn  are  the  certain  evidences  of  good  government^ 

*  Emmerson  v.  Taylor,  9  Greenleaf,  44 ;  under  the  guidance  of  virtue  and  wisdom. 

O'Donnell  v.  Kelsey,  4  Sandford,  202.  The  army  was  restrained  by  the  firm   but 

In  Mfline,  as  to  the  rules  for  apportioning  gentle  hand  of  four  successive  emperors  whose 

flats  to  the  owners  of  uplands,  see  Treat  r.  characters  and  authority  commanded  involun- 

Chapman,   35  Maine,  p.  34,  and  cases  there  tary  respect.     The  forms  of  the  civil  admin- 

•cited  both  in  that  State  and  Massachusetts.  istration  were  carefully  preserved  by  Nerva, 

f  "  If  a  man,"  says  Gibbon,  "  were  called  Trajan,  Hadrian,  and  the  Antonines,  who  de- 
upon  to  fix  the  period  of  the  world  during  lighted  in  the  image  of  liberty,  and  who  were 
which  the  condition  of  the  human  race  was  pleased  to  consider  themselves  as  the  account- 
most  happy  and  prosperous,  he  would  with-  able  ministeVs  of  the  laws." — Hist.  ch.  iii. 
out  hesitation  name  that  which  elapsed  from  Gibbon  surveyed  the  ancient  world  with 
the  death  of  Domitian  to  the  accession  of  an  eye  of  wonderful  scrutiny  and  wisdom. 
Commodus.  The  vast  extent  of  the  Roman  His  authority  is  now  as  absolute  as  when  he 
empire  was  governed  by  absolute  power,  wrote.  But  in  regard  to  the  affairs  of  his 


MUNICIPAL  ORDINANCES.  393 

Cases  of  this  kind,  however,  are  but  exceptions  to  the  great 
rule  which  teaches  that  permanent  prosperity  can  only  flow 
from  equality  and  justice.  Centralization  or  despotism  cor- 
rupts the  sovereign,  debilitates  and  demoralizes  the  subject; 
and  history  affords  no  instances  where,  within  a  brief  period,  it 
has  not  ended  in  convulsion  and  disaster. 

Of  the  other  scheme,  or  the  distribution  of  power  among 
local  authorities,  England  affords  the  only  signal  instance  in  the 
Old  World.  Notwithstanding  the  theoretical  despotism  of  her 
Parliament,  her  system  practically  secures  that  division  of  author- 
ity those  checks  and  counter-checks,  which  are  only  another  name 
for  liberty.  But  to  obtain  a  correct  idea  of  the  full  extent  and 
operation  of  local  action  and  local  sovereignty,  a  wider  range 
of  observation  must  be  taken.  Beyond  all  doubt,  this  country 
affords  the  strongest  and  best  instance  of  its  operation. 
American  freedom  is  based  on  the  idea  of  local  action,  local- 
ized power,  local  sovereignty,  and  has  received  its  best  develop- 
ments from  the  intelligence  and  energy  of  its  people,  fostered  to 
the  highest  degree  by  a  system  which  seeks,  as  far  as  safely 
possible,  to  strip  the  central  authority  of  influence,  and  to  dis- 
tribute its  functions  among  local  agents  and  bodies.* 

The  two  great  national  governments,  then,  which  have  been 
thus  far  the  most  successful  in  forming  a  compromise  between 
the  principles  of  local  action  and  centralization,  are  England 
and  the  United  States.  Their  aim  has  been  to  combine  the 
benefits  of  order  and  discipline  resulting  from  a  central  author- 
ity, with  that  freedom  of  thought  and  action  which  can  only 
be  obtained  in  the  highest  degree,  by  the  absence  of  authority 
and  supervision.  Of  these  two,  however,  our  system,  based  as 
it  is  on  a  federation  of  State  sovereignties  supreme  in  the  great 
mass  of  their  domestic  affairs,  these  State  sovereignties  again 
sedulously  endeavoring  to  distribute  authority  among  the 
smaller  political  and  geographical  subdivisions,  is  far  the  most 

own  time,  he  appears  to  have  had  little  more  calle.l    decentralization.     By    the  means  of 

philosophy  or  independence  than  any  other  frequent  local  elections  and  division  ofpower, 

placeman.  it  has   carried  local   sovereignty  to  a  point 

*  Of  ihis  system,  perhaps  the  convention  never   tried   before.     It   cannot   yet  be  said 

of  the  State  of  New  York  of  1846  presents  the  with  confidence,  whether  the  line  of  wisdom 

strongest  illustration  of  what  is  commonly  has  not  been  passed. 


394  MUNICIPAL  ORDINANCES. 

conspicuous  as  exhibiting  the  benefits  resulting  from  localized 
power  and  action. 

It  is  in  connection  with  these  considerations,  that  the  sub- 
ject of  municipal  ordinances  has  its  chief  interest  to  us  in  this 
country.  Corporations  or  associations  endowed  with  certain 
artificial  attributes  relating  to  their  management  and  duration 
were  borrowed  from  the  civil  law,  and  very  early  applied  to 
the  administration  of  many  kinds  of  business.  And  the  same 
system,  i.  &,  grants  of  charters,  was  extended  to  the  government 
of  boroughs  and  towns  in  England.  In  this  country,  the  town 
governments  or  organizations  are  among  the  most  important 
parts  of  the  machinery  by  which  the  local  action  and  independ- 
ence of  the  country  is  preserved.  When  the  towns  become 
populous  they  generally  receive  charters  of  incorporation,  and 
act  upon  the  interests  of  person  and  property  confided  to  them 
by  means  of  what  are  called  municipal  ordinances.  The  rules 
governing  this  branch  of  written  law  thus  become  matters  of 
great  importance.* 

So  far  as  these  municipal  institutions  fall  under  the  general 
rules  applicable  to  corporations,  a  highly  fertile  and  complex 
branch  of  our  law,  they  have  been  very  ably  treated  by 
various  writers,  and  fall  outside  of  the  scope  of  this  work. 
But  municipal  ordinances  or  laws  regarded  as  the  enactments 
of  the  governing  power  of  towns  or  cities,  made  by  virtue  of  a 
delegated  sovereignty,  fall  directly  within  the  limits  of  our  sub- 
ject, and  by  reason  of  the  multiplicity  of  these  institutions  and 
the  immense  number  of  individuals  and  the  masses  of  property 

*  The  account  which  the  learned  and  saga-  cause  he  owned  the  Mansus  to  which  the  ju- 
cious  historian  of  the  Anglo-Saxon  period  in  dicial  right  or  duty  appertained ;  and  if,  as 
England  gives,  of  the  condition  of  the  bor-  there  is  every  reason  to  suppose,  the  election 
oughs  or  towns  at  that  early  period  is  very  of  Reeves  and  other  similar  officers  by  the 
curious.  He  says,  "  What,  then,  was  the  Leet  juries  has  descended  from  the  Anglo- 
situation  of  the  Anglo-Saxon  burghs  ?  Ren-  Saxon  age,  the  other  functionaries  were  vir- 
dering  a  light  and  easy  tribute,  and  perform-  tually  appointed  by  the  people.  Legislation 
ing  moderate  services,  they  were  protected  was  the  prerogative  of  the  sovereign  and  his 
against  compulsory  taxation.  Beyond  their  Witan  ;  yet,  though  the  laws  thus  enacted, 
settled  and  accustomed  contribution,  no  pe-  extended  in  general  terms  to  all  those  who 
cuniary  aid  could  be  required,  except  by  an  were  subjected  to  his  supremacy,  still,  the 
illegal  exertion  of  power.  As  a  body,  they  mode  of  accepting  the  statutes  and  of  carry- 
were  often,  if  not  always,  freed  from  the  ing  them  into  effect,  depended  upon  the  de- 
feudal  bond.  The  rights  of  the  territorial  liberations  of  the  burghmoot,  and  the  discre- 
magistracy  resulted  ftom  their  own  internal  tion  of  its  members  ;  and  London  was  as  much 
condition,  and  not  from  the  nomination  of  the  entitled  to  the  name  of  a  distinct  state  or  corn- 
crown.  The  Laghman  acted  as  judge,  not  by  munity  as  the  Kentish  kingdom." — Palgrave's 
virtue  of  the  king's  '  writ'  and  '  seal,'  but  be-  Commonwealth,  vol.  i,  ch.  21,  pp.  632  and  633. 


MUNICIPAL  ORDINANCES.  395 

under  their  control,  are  of  very  great  importance.  I  shall,  there- 
fore, in  this  chapter,  state  some  of  the  prominent  rules  that 
govern  enactments  of  this  kind,  which,  within  the  sphere  of 
their  authoritv,  have  all  the  force  of  statutes.  . 

»/  / 

We  have  had  occasion  (ante,  pp.  135,  138)  to  notice  the 
general  rule  that  a  legislative  body  is  not  competent  to  dele- 
'gate  its  functions.  But  this  is  subject,  like  most  of  the  general 
rules  in  our  complex  and  artificial  system,  to  a  large  class  of  ex- 
ceptions. It  is  well  settled  that  in  many  cases,  a  certain 
amount  of  legislative  power  may  be  entrusted  to  municipal  cor- 
porations. So  in  New  York,  a  city  ordinance  in  regard  to  the 
sale  of  coal  by  weight,  fixing  the  number  of  weighers,  and  im- 
posing a  penalty  on  those  who  should  sell  coal  not  weighed, 
has  been  sustained.*  So  in  New  Hampshire,  it  has  been  said 
that  the  Legislature  may  constitutionally  authorize  a  city  to 
enact,  and  a  city  may  enact,  an  order  that  no  intoxicating 
liquors  shall  be  used  or  kept  in  any  refreshment  saloon  or  res- 
taurant within  the  city,  for  any  purpose  whatever,  f  So  in  the 
same  State,  it  has  been  held  that  an  act  declaring  that  a  bowl- 
ing-alley within  twenty-five  rods  of  certain  specified  buildings 
should  be  deemed  a  public  nuisance,  but  that  the  act  should 
only  be  in  force  in  such  towns  as  should  adopt  it,  has  been 
held  constitutional ;  and  an  indictment  for  keeping  a  bowling- 
alley  !in  the  situation  contemplated  by  the  statute,  in  a  town 
where  the  act  had  been  adopted,  has  been  sustained  on  the  gen- 
eral ground  that  powers  of  local  legislation  may  be  granted  to 
cities,  towns,  and  other  municipal  corporations.  J 

So,  too,  it  has  been  held  that  the  taxing  power  for  local 
purposes  may  be  delegated  to  the  local  authorities ;  and  on  this 
ground  acts  authorizing  municpal  corporations  to  subscribe  to 
railroad  corporations  have  been  sustained,  against  the  objection 
that  they  were  void  as  being  a  delegation  of  the  supreme  author- 
ity. I  But  I  confess  that  it  appears  to  me,  notwithstanding  the 
weight  of  authority  on  this  head,  that  a  delegation  of  the  power 

*  Stokes  &  Gilbert  v.  The  Corporation  of  Perm.  188;  State  of  Louisiana  v.  Executors 

New  York,  14  Wend.  87.  of  John  McDonogh,  8  La.  Ann.  R.  171 ;  New 

f  The  State  v.  Clark.  8  Foster,  176.  Orleans  v.  Graihle,  9  La.  Ann.  R.  561 ;  Slack 

\  The  State  T.  Noyes,  10  Foster,  279.  v.  Maysville  and  Lexington  R.  R.  13  B.  Mon- 

||  Sharpless  v.  The  Mayor  of  Philadelphia,  roe,  1 ;  The  Justice  of  Clarke  Co.  v.  The  P. 

21  Penn.  147  ;  Moers  v.  City  of  Reading,  21  W.  and  R.  R.  Turnpike  Co.  11  B.  Monroe,  143. 


39G  MUNICIPAL   ORDINANCES. 

to  municipal  corporations  to  tax  their  citizens  for  works  of  such 
large  and  general  utility  as  railroads,  cannot  be  fairly  called  a 
taxation  for  local  purposes,  nor  justified  on  that  ground.  The 
road  may  benefit  the  locality,  but  it  is  not  easy  to  see  how  it 
can  be  properly  called  a  local  object. 

Again,  the  highest  powers  of  the  State  are  sometimes  dele- 
gated to  these  corporations  for  purposes  of  general  safety.  Sb 
in  New  York,  on  an  order  of  the  mayor  and  two  aldermen  of 
the  city,  buildings  may  be  destroyed  to  prevent  the  spread  of  a 
conflagration.*  In  this  act  provision  was  made  for  compensa- 
tion to  the  owner ;  and  it  seems  to  be  settled,  under  the  gen- 
eral constitutional  clause  declaring  that  private  property  shall 
not  be  taken  for  public  use  without  compensation,  that  when 
acts  in  connection  with  measures  of  municipal  regulation 
authorize  the  taking  of  private  property,  compensation  must  be 
provided,  or  the  appropriation  will  be  unconstitutional  and 
void.f  But  if  private  property  is  not  absolutely  taken,  it 
seems  clear  that  cities  acting  within  the  powers  conferred  by 
their  charter,  may,  when  necessary  to  the  health  of  the  city, 
direct  and  control  the  occupation  of  property,  and  may  in  so 
doing,  to  some  extent,  interfere  with  private  rights  without  pro- 
viding for  compensation.^  So  in  Boston  it  was  held  that  the 
city  authorities  were  authorized  to  fill  up  a  creek  in  the  exer- 
cise of  their  powers^for  the  preservation  of  the  health  of  the 
city.  I 

The  same  power  is  exercised  in  regard  to  nuisances.  So  the 
city  of  Albany  being  authorized  by  its  charter  to  remove  and 
abate  nuisances  in  and  about  the  docks  and  wharves,  and  to 
prevent  obstructions  in  the  Hudson  river  opposite  the  city,  it 
has  been  held  to  have  the  power  to  remove  an  ark  or  float 
moored  in  the  basin  and  obstructing  the  navigation.^"  So  again 
when  at  the  time  of  the  first  appearance  of  the  Asiatic  cholera 
in  this  country,  the  board  of  health  of  Albany  declared  certain 
buildings  a  nuisance  and  they  were  pulled  down,  it  was  held 

*  The  Mayor,  &c.  of  New  York  v.  Lord,  1  Clark  v.  The   Mayor   of  Syracuse,    13 

1Y  Wend.  285  ;  s.  c.  18  Ibid.  126 ;  Russell  v.  Bart).  32. 
The  Mayor,  <fcc.  of  New  York,  2  Demo,  461.  ||  Baker  v.  The  City  of  Boston,  12  Pick. 

f  Baker  v.  The  City  of  Boston,  12  Pick.  184. 

184  ;  Clark  v.  The  Mayor,  <fec.  of  Syracuse,          J  Hart  v.  The  Mayor  of  Albany,  9  Wend. 

13  Barb.  32.  571. 


MUNICIPAL  ORDINANCES.  397 

to  be  rightly  done.  But  this  power  of  abolishing  nuisances  by 
mere  municipal  ordinances,  without  any  judicial  investigation 
and  without  any  obligatory  notice  to  the  party  in  interest,  in- 
volves great  interference  with  private  property  ;  and  it  is  well 
settled  that  it  will  not  be  permitted,  unless  the  charter  clearly 
confers  the  authority ;  *  and  on  this  principle  it  has  been  re- 
cently decided  that  the  city  of  Syracuse,  in  the  State  of  New 
York,  had  not  the  power.f 

In  regard  to  the  exercise  of  judicial  construction  with  re- 
spect to  the  powers  delegated  to  these  subordinate  bodies,  it 
has  been  said  in  England  generally,  in  speaking  of  by-laws 
framed  by  corporations,  that  they  ought  to  have  a  reasonable 
construction ;  that  they  are  not  to  be  construed  so  strictly  as  to 
make  them  void,  if  every  "particular  reason  of  making  them 
does  not  appear. J  But  in  regard  to  corporations  of  a  public 
character,  this  does  not  seem  to  be  the  modern  English  doc- 
trine. "  When  public  functionaries,"  says  Lord  Cottenham, 
speaking  of  the  poor-law  commissioners,  "  depart  from  the 
powers  which  the  law  has  vested  in  them,  and  assume  a  power 
which  does  not  belong  to  them,  the  court  no  longer  considers 
them  as  acting  under  their  commission,  but  treats  them,  whether 
a  corporation  or  individuals,  as  persons  dealing  with  property 
without  legal  rights ;  and  when  such  persons  infringe  or  violate 
the  rights  of  others,  they  become,  like  all  other  individuals, 
amenable  to  the  jurisdiction  of  this  court  by  injunction."  || 

In  this  country,  in  regard  to  the  ordinances  of  municipal 
corporations,  and  the  exercise  of  their  delegated  sovereignty, 
the  doctrine  is  in  conformity  with  the  general  rule  which  we 
have  elsewhere  noticed  in  regard  to  special  powers,  as  well  as 
with  the  principles  in  regard  to  corporations  generally,  that  the 
authority  conferred  upon  these  subordinate  bodies  is  to  be 
strictly  construed,  and  must  be  closely  pursued.  In  New  York 
it  is  declared  by  statute,  in  regard  to  towns  and  corporations, 

*  The  People  v.  The  Corporation  of  Al-  see  also  Agar  v.  Regent's  Canal  Co.  Cooper's 

bany,  11  "Wend.  539.  Equity  Cases,  77;  The  River  Dun  Navigation 

f' Clark  v.  The  Mayor  of  Syracuse,  13  Co.  v.  North  Midland  Railway  Co.  1  Railway 

Barb.  32.  Cases,  135  ;  Attorney  General  v.  Aspinwall, 

\  The  Master,  <fec.  of  Vintner's  Co.  v.  Pas-  2  M.  <fc  C.  <fcc.  613;  Same  v.  Corporation  of 

sey,  1  Burr.  235,  239.  Poole,  4  M.  &  C.  30  ;  Same  v.  Mayor  of  Dub- 

I  Fr.ewin  v.  Lewis,  4  M.  &  Craig,  249 ;  lin,  9  Bligh,  395. 


,398  MUNICIPAL   ORDINANCES. 

that  they  shall  not  possess  any  power  except  such  as  was  spe- 
cially given,  or  as  shall  be  necessary  to  the  exercise  of  the 
powers  so  given ;  *  and  these  provisions  are  in  general  strictly 
construed.  So  the  common  council  of  a  city,  under  general 
words  which  give  it  power  to  provide  for  the  good  government 
of  the  city,  have  no  authority  to  furnish  an  entertainment  for 
the  citizens  and  guests  of  the  city  at  the  public  expense.  A 
contract  for  such  purpose  is  absolutely  void,  and  even  if  per- 
formed by  the  party  with  whom  it  is  made,  payment  cannot  be 
enforced  against  the  city.f  So  a  town,  which  is  only  author- 
ized to  sue  and  be  sued  in  its  own  name,  cannot  authorize  com- 
missioners of  highways  to  bring  a  suit  in  their  own  names  for 
injuries  to  the  property  of  the  town.  A  resolution  4to  that 
effect  is  void,  and  the  commissioners  who  bring  the  suit  are 
remediless  for  their  costs  and  expenses. \  Nor  can  there  be  any 
subsequent  ratification  of  an  act  or  proceeding  which  the  town 
has  no  authority  to  order.  So  where  a  municipal  corporation 
was  recognized  as  having  an  exclusive  right  to  control  and 
regulate  the  use  of  the  streets  of  a  city,  and  as  being  endowed 
in  that  respect  with  legislative  sovereignty,  it  was  held  that  an 
ordinance  making  a  perpetual  grant  of  a  right  to  lay  down  a 
railway  in  a  street  of  the  city  was  not  a  legislative  act,  but  a 
practical  surrender  of  the  power  of  the  corporation,  and  void.  | 
When  the  supervisors  of  the  city  of  New  York  refused  to  pay 
certain  salaries,  on  the  ground  of  the  unconstitutionality  of  the 
law  under  which  the  salaries  were  claimed,  and  the  common 
council  assumed  the  defence  of  the  suits  brought  against  the 
supervisors  for  the  penalty  incurred  by  the  violation  of  their 
duty,  it  was  held  that  they  had  no  right  to  do  so,  and  that  the 
drafts  given  for  the  expenses  of  the  suits  were  void,  ^f 

So  a  common  council  authorized  to  make  and  publish  ordi- 
nances for  the  purpose  of  abating  nuisances,  has  no  power  to 
direct  the  removal  of  a  person  sick  with  an  infectious  or  conta- 

*  1  R.  S.  337,  §  22 ;  1  R.  S.  599,  g§  1,  3.  New  York,  3  Com.  431 ;  for  other  cases  grow- 

f  Hodges  v.  City  of  Buffalo,  2  Denio,  110.  ing  out  of  this  same  matter,  see  Purdy  v.  The 

\  Cornell  v.  Town  of  Guilford,  1  Denio,  People,  4  Hill,  384 ;  and  Morris  v.  The  People, 

610;  see  the  continuation  of  the  controversy,  3  Denio,  392.     The  unconstitutionality  of  the 

Town  of  Guilford  v.  Cornell,  18  Barb.  615.  appointment  of  the  officers  in  question  was 

I  Milhau  v.  Sharp,  17  Barb.  435.  left  open  by  the  latter  case. 
1  Halsted  v.  The  Mayor,  &c.  of  the  City  of 


MUNICIPAL  ORDINANCES.  399 

gious  disease,  from  one  place  to  another,  without  his  consent ; 
and  still  less  to  order  the  forcible  seizure  of  a  person's  house 
and  its  occupation  as  a  pest-house  against  his  will.  *  In  the 
same  State  the  Court  of  Appeals  has  said,  "  The  ordinance  of  a 
municipal  corporation  must  conform  strictly  to  the  provisions 
of  the  statute  giving  power  to  pass  the  ordinance  in  question, 
or  its  proceedings  will  be  void."  So  when  the  common  coun- 
cil of  the  city  of  Schenectady  was  authorized  by  ordinance  to 
pitch,  level,  and  flag  streets  "  in  such  manner  as  they  might  pre- 
scribe," and  they  passed  an  ordinance  delegating  this  power  to 
a  city  superintendent,  and  directing  the  expenses  to  be  paid  by 
the  owners  of  the  property  in  front  of  which  the  improvement 
was  made,  it  was  held  that  the  ordinance  was  void,  f 

In  Massachusetts,  however,  the  rule  that  the  delegated 
power  is  to  be  strictly  construed,  does  not  seem  so  severely 
adhered  to.  Where  a  city  ordinance  was  passed  directing  an 
assessment  for  certain  work,  and  the  work  was  done,  but  not  in 
conformity  to  the  ordinance,^  the  Supreme  Court  of  Massachu- 
setts said,  "  The  general  principle  that  the  city  ordinance  must 
be  adhered  to,  is  a  sound  one ; "  but  the  assessment  was  held 
binding,  and  the  court  in  deciding  the  cause  used  this  language : 
"  Without  prescribing  any  general  rule  on  this  subject,  and  con- 
ceding that  the  subject  of  deviation  from  the  ordinance  is  not 
free  from  difficulties  in  limiting  the  extent  to  which  departures 
may  be  permitted  in  the  mode  of  construction,  the  court  are  of 
opinion,  that  the  grounds  of  defence  here  relied  upon  are  insuffi- 
cient ;  and  that,  when  the  deviation  is  made  at  the  request,  or 
with  the  assent  of  the  land-owner  liable  to  be  assessed,  he 
should  be  estopped  from  setting  it  up ;  and  also  when  the  de- 
parture is  not  substantially  and  palpably  an  intended  deviation 
from  the  ordinance,  especially  when  not  attended  with  any  sub- 
stantial increase  of  expense,  and  an  assessment  is  made  therefor 
by  the  city  authority,  it  is  not  competent  for  one  who  is  other- 
wise duly  assessed  to  avoid  the  payment  of  his  assessment  by 
raising  the  objection  of  a  departure  from  the  ordinance  in  the 
mode  of  construction." 

*  Boom  v.  City  of  Utica,  2  Barb.  104.  \  City  of  Lowell  v.  Hadley,  8  Met.  180. 

f  Thompson  v.  Schermerhorn,  2  Seld  92. 


400  MUNICIPAL  ORDINANCES. 

It  is  a  general  rule  that  municipal  by-laws  and  ordinances 
must  not  be  in  conflict  with  the  general  law;  and  on  this 
ground  it  has  been  held  in  Connecticut,  that  a  by-law  of  a 
borough  prohibiting  the  taking  of  oysters  from  the  waters 
within  the  borough  during  a  certain  period  of  the  year,  under  a 
penalty  therein  prescribed,  which  the  borough  is  authorized  by 
its  charter  to  make,  is  abrogated  by  a  general  law  of  the  State, 
passed  subsequent  to  the  granting  of  the  charter,  prohibiting 
the  doing  of  the  same  act  under  a  penalty  prescribed  in  the 
statute,  so  far  as  such  by-law  prohibits  the  act,  whether  such 
by-law  was  made  before  or  after  the  passing  of  the  general 
law ;  and  therefore  no  action  for  the  doing  of  the  act  after 
the  passing  of  such  general  law  can  be  maintained  upon  the 
by-law.* 

A  case  of  great  interest  has  presented  itself  in  New  York, 
in  regard  to  the  general  powers  of  municipal  corporations  and 
the  control  of  the  courts  over  them.  While  an  application  was 
pending  before  the  common  council  of  the  city  of  New  York, 
in  1853,  for  leave  to  construct  a  railroad  in  Broadway,  the  main 
avenue  of  the  city,  suit  was  brought  in  the  Superior  Court  for 
an  injunction  restraining  the  members  of  the  common  council 
from  making  the  grant.  The  complaint  charged  that  the  cor- 
poration had  no  power  in  the  premises  under  their  charter ;  that 
the  grant  would  create  an  injurious  monopoly ;  that  the  road 
would  be  a  public  nuisance,  and  that  the  members  of  the  city 
government  were  actuated  Iby  fraudulent  and  corrupt  motives. 
The  injunction  was  granted,  and  served  on  the  members  of  the 
common  council.  That  body,  however,  totally  disregarded  it; 
declared  by  resolution,  "  that  the  courts  had  no  power  to  inter- 
fere with  the  municipal  legislation  of  the  city ;  that  the  com 
mon  council  would  not  allow  any  other  body  to  interfere  un- 
lawfully with  the  authority  which  it  held  from  the  people,  and 
which  it  was  bound  to  exercise  according  to  its  own  judgment 
and  on  its  own  responsibilities,  and  not  according  to  the  views 
and  directions  of  any  judge  or  any  other  individual  citizen ; " 
and  proceeded  to  pass  the  grant.  The  authority  of  the  court 
thus  being  set  at  defiance,  an  application  was  made  for  an 

*  Southport  v.  Ogden,  23  Conn.  R.  128. 


MUNICIPAL   ORDINANCES.  401 

attachment  against  all  the  members  of  the  common  council,  as 
for  a  contempt. 

The  course  taken  by  the  common  council  necessarily  in- 
volved the  precise  question  whether  the  courts  could  exercise 
any  jurisdiction  over  a  municipal  corporation  for  a  breach  of 
trust,  violation  of  general  principles  of  law,  or  bad  faith.  The 
question  was  one  of  very  great  interest,  and  attracted  the  atten- 
tion which  its  importance  deserved.  Many  objections  were 
urged  to  the  application  for  the  attachment ;  but  the  one  of 
principal  importance  was,  that  the  resolution  in  question  was 
an  act  of  legislation,  with  which  the  courts  could  not  rightfully 
interfere.  And  it  was  contended  that  no  court  of  equity  could 
interfere  in  any  case,  or  for  any  purpose,  with  the  legislative 
action  of  a  municipal  corporation,  no  matter  how  gross  the  vio- 
lation of  law,  or  even  of  the  provisions  of  its  own  charter,  or 
how  great  the  nuisance  threatened,  or  how  corrupt  the  motive. 

But  the  doctrine  was  denied :  it  was  declared  that  there  was 
no  distinction  between  a  municipal  corporation  or  any  other 
corporation  aggregate  in  respect  to  the  powers  of  courts  of  jus- 
tice over  its  proceedings ;  and  that  "  although  such  a  municipal 
body  is  clothed  with  legislative  and  even  political  powers,  yet 
in  the  exercise  of  all  its  powers,  it  is  just  as  subject  to  the 
authority  and  control  of  courts  of  justice  to  legal  process,  legal 
restraint,  and  legal  correction,  as  any  other  body  or  person, 
natural  or  artificial."  This  doctrine  was  asserted  on  the  uni- 
form authority  of  the  English  cases  and  those  of  our  own 
courts,  and  also  on  the  constitutional  provision,  "that  all  cor- 
porations, shall  have  the  right  to  sue  and  shall  be  subject  to  be 
sued  in  all  courts,  in  like  cases  as  natural  persons ; "  *  while  it 
was  admitted  that  the  court  had  no  right  to  interfere  with  the 
proper  legislative  discretion  of  the  corporation,  it  was  declared 
that  it  could  interpose  its  authority  whenever  it  was  necessary 
to  prevent  abuse,  injustice,  or  oppression,  the  violation  of  a 
trust,  or  the  consummation  of  a  fraud.  On  the  ground,  there- 
fore, that  the  complaint  alleged  sufficient  cause  to  give  the 
court  jurisdiction,  that  the  injunction  was  rightly  issued,  and 

*  Cons,  of  N.  Y.  1846,  art.  8,  §  3. 
26 


402  MUNICIPAL  ORDINANCES. 

that  as  long  as  in  force  it  was  entitled  to  obedience,  an  attach- 
ment was  granted.  * 

Where  a  municipal  corporation  has  power  to  make  reasona- 
ble by-laws,  it  has  been  said  that  the  question  whether  a  given 
by-law  is  reasonable,  is  a  question  for  the  court,  and  not  for  the 
jury,  and  evidence  on  the  subject  is  inadmissible,  f  If  unrea- 
sonable, the  court  holds  them  void.  J  So,  a  by-law  of  the  city 
of  Boston  in  regard  to  sewage,  has  been  held  in  that  State  to 
be  void  for  inequality  and  unreasonableness.  | 

We  have  already  seen  that  a  statute  of  a  local  or  municipal 
character  is  as  fatal  to  the  validity  of  all  contracts  based  on  a 
violation  of  it,  as  if  the  act  be  one  of  a  general  character.  And 
it  has  been  intimated  that  a  corporation  ordinance  was  equally 
efficacious.  ^[ 

In  regard  to  the  enforcement  or  sanction  of  by-laws,  the 
rule  is  that  they  can  only  be  enforced  by  a  pecuniary  penalty, 
unless  there  is  some  express  act  giving  power  to  inflict  other 
punishment.** 

As  to  the  passage  of  municipal  ordinances,  the  following 
decision  is  to  be  observed.  It  is  a  general  rule  of  practice  in 
legislative  bodies  which  consist  of  two  branches,  that  all  busi- 
ness before  them,  and  unfinished  at  the  end  of  a  session,  is  dis- 
continued ;  and  that  if  taken  up  at  all  at  &  session  following,  it 
must  be  taken  up  de  novo.  It  has  been  held  in  New  York,  that 
the  analogy  of  this  rule  applies  to  acts  of  a  municipal  corpora- 
tion of  a  legislative  character ;  and  consequently  an  ordinance 

*  Davis  v.  The  Mayor,  &c.  of  the  City  of  there  is  a  deficiency  in  our  system  of  the  ad- 
New  York,  1  Duer,  451.  ministration  of  justice,  in  not  providing  the 

The  cause  came  up  again  on  the  return  to  courts  with  means  to  obtain  for  themselves 

the  attachment.     People  v.  Compton,  ]  Duer,  satisfactory  evidence  or  instruction  in  regard 

612.     The  doctrine  of  the  previous  cose  was  to  questions  of  fact  which  are  left  to  them  to 

sustained ;  one  of  the  aldermen  was  impris-  decide.     The  difficulty  presents  itself  in  re- 

oned  for  fifteen  days,  and  the  rest,  with  the  gard  to  the  construction  of  technical  words 

exception   of  one  who  apologized,  were  fined  in  statutes,  us  well  as  iu  the  matter  above  re- 

$100  and  costs.  ferred  to. 

\  Commonwealth   v.   Worcester,   3   Pick.  ±  Vandine's  Case,  6  Pick.  18*7,  191. 

462.     But  how  is  the  court  to  obtain  the  nee-  |j   City  of  Boston  v.  Shaw,  1  Met.  130. 

essary   knowledge  ?      In   Vandine's   Case,    6  ^[  Ex  parte  Dyster  in  re  Moline,  1  Meri- 

Pick.  191,  it  is  said,  "To  arrive  at  a  correct  vale,  155;  Bell  v.  Quin.  2  Sandford,  146;  Be- 

decision,  whether  the  by-law  be  reasonable  or  man  v.  Tugnot,  5  Sandf.  154;  ante,  p.  70. 

not,  regard  must  be  had  to  its  object  and  ne-  **  Gee  v.  Wilden,  2  Lvtw.  1320;  Bosworth 

cessity.     Minute  regulations  are  required  in  a  v.  Budjjen,  7  Mod.  459;  2  Str.  1112;  Leath- 

great  city,   which  would  be   absurd   in  the  ley  v.  Webster,  Sayer,  251 ;  Gray  on  Corpora- 

ccuntry."     Necessity  is  certainly  a  fact ;  and  tions,  8;  Hills  v.  Hunt,  15  Com.  B.  1,  6  J. 

how  is  the  judicial  knowledge  of  this  fact  to  Scott,  1,  25. 
be  arrived  at  ?     I  believe  it  may  be  said  that 


MUNICIPAL  ORDINANCES.  403 

granting  to  a  city  railroad  company  leave  to  use  the  streets  for 
that  purpose,  which  passed  the  board  of  assistant  aldermen  of 
the  city  of  New  York  in1  1852,  but  was  not  passed  by  the 
board  of  aldermen  till  1853,  after  a  new  board  had  been  elected, 
has  been  decided  to  be  void.  * 

In  reference  to  the  admissibility  of  the  books  of  a  municipal 
corporation  as  evidence,  the  Supreme  Court  of  the  State  of  New 
York  has  said,  "  that  the  corporation  of  the  city  of  New  York 
more  nearly  resembles  the  Legislature  of  an  independent  State, 
acting  under  a  Constitution  prescribing  its  powers,  than  an  ordi- 
nary private  corporation.  The  acts  of  this  corporation  concern 
the  rights  of  the  inhabitants  of  the  city ;  it  exercises  a  delegated 
power,  not  for  its  own  emolument,  but  for  the  interests  of  its 
constituents ;  and  while  it  keeps  within  the  limits  of  its  author- 
ity, the  constituents  are  bound  by  the  acts  of  the  corporation. 
When  the  citizen  wishes  to  show  those  acts,  he  must  resort  to 
the  authentic  record  of  them ;  which  is  the  original  minutes  of 
the  corporation."  f 

*  Wetinore   v.   Story,   Abbott's  Practice          See  Trustees  of  Clintonville  v.  Keetins:,  4 

Cases,  vol.  iii,  p.  263.  Denio,  341,  for  a  decision  on  the  validity  of  a 

Some  points  of  local   municipal  interest  trustee's  ordinance  imposing  a  fine  for  selling 

may  here  be  noticed.     In  New  York,  as  to  ardent  spirits. 

the  power  of  the  corporation  as  to  the  con-  For  a  long  and  interesting  case  on  the  sub- 
struction of  piers  and  bridges,  see  Marshall  v.  ject  of  the  powers  of  municipal  corporations, 
Guion,  4  Denio,  581.  see  the  Attorney  General  of  the  State  of  New 

In  the  same  State  it  has  been  held  that  an  York  v.  The  Mayor,  &c.  of    New  York,   3 

arrest  cannot  be  made  on  Sunday  for  a  viola-  Duer,  119. 

tion  of  a  corporation   ordinance.      Wood  V.  f  Denning  v.  Roome,  6  Wend.  651,  note 

City  of  Brooklyn,  14  Barb.  425.  800;  3  Phillips  on  Evidence,  p.  1150. 


CHAPTEK    X. 

LIMITATIONS   IMPOSED  UPON  LEGISLATIVE  POWER  BY  THE  CONSTI- 
TUTIONS  OF  THE    SEVERAL   STATES   OF   THE  UNION. 

The  general  Character  of  Constitutional  Provisions  regarded  as  Limitations  upon 
Legislative  Power. — Principal  Restrictions  imposed  by  the  State  Constitu- 
tions.— Guaranty  of  Private  Property. — Trial  by  Jury. — Protection  of  Law. — 
Searches  and  Seizures  —  Taxation. —  Police  Regulations. —  Titles  of  Bills. — 
Amendments. — Repeal. — Constitutional  Majorities. — Religious  Tests. — Religious 
Societies. — Creation  of  Judges. — Incorporations. — Trust  Funds. — Divorces. — 
Suits  against  the  State. 

WE  have  thus  far  examined  the  subject  of  written  law 
with  reference  to  the  general  principles  of  the  jurisprudence 
which  we  have  derived  from  the  English  stock,  and  which 
govern  wherever  that  system  obtains.  We  now  proceed  to 
consider  a  branch  of  the  great  topic  which  is  confined  exclu- 
sively to  this  country — I  mean  CONSTITUTIONAL  LAW. 

The  late  chief  justice  of  the  United  States,  in  his  survey  of 
the  events  leading  to  the  Declaration  of  Independence,  on 
which  he  looked  with  almost  a  contemporary  eye,  when  speak- 
ing of  the  first  State  governments  organized  in  1776,  says  that 
"  the  untried  principle  was  everywhere  adopted  of  limiting  the 
constituted  authorities  by  the  creation  of  a  written  Constitu- 
tion prescribing  bounds  not  to  be  transcended  by  the  Legisla- 
ture itself."  *  It  is  in  this  point  of  view  that  I  have  now  to 
examine  the  subject  of  our  constitutional  law. 

The  provisions  of  the  Constitutions  of  the  several  States  of 
the  Union,  as  well  as  those  of  the  Federal  Charter  itself,  may 
be  divided  into  two  great  heads :  those  which  relate  to  political 
power  and  organization ;  and  those  which  are  intended  to  serve 
as  securities  for  private  rights,  and  which  are  specially  framed 
as  checks  on  legislative  action.  Of  the  constitutional  provis-. 

*  Marshall's  Life  of  Washington,  vol.  ii,     and  Rhode  Island,  whose  systems  had  ever 
p.  371.     He  makes  an  exception  as  to  the    been  in  a  high  degree  democratic." 
novelty  of  the  idea,  in  favo#  of  "  Connecticut 


CONSTITUTIONAL  LAW.  405 

ions  which  distribute,  arrange,  and  determine  political  power, 
this  work  is  not  intended  to  treat.  It  is  confined  to  the  con- 
sideration of  those  clauses  which,  for  the  purpose  of  protecting 
private  and  personal  rights,  are  inserted  as  limitations  upon 
legislative  action. 

This  great  head  of  Constitutional  Law  is  peculiar  to 
American  jurisprudence.*  It  is  full  of  importance  to  every 
citizen  of  the  Republic ;  to  the  lawyer  it  is  a  matter  of  com- 
manding interest ;  nor  will  it  ever  be  possible  to  under- 
stand the  character  or  to  write  the  history  of  our  people, 
without  a  complete  knowledge  of  this  fertile  and  complex 
subject,  f 

It  is  not  possible  that  the  eminently  sagacious  men  who 
framed  our  systems  of  administration  supposed  that  they  would 
remain  forever  inviolate  ;  and  it  is  one  of  the  most  curious  cir- 
cumstances connected  with  their  formation,  that  in  laying  down 
these  barriers  against  legislative  invasions  of  private  right  they 
wholly  omitted  to  provide  any  positive  guaranty  or  specific 
protection  for  them.  No  sanction  or  penalty  is  attached.  A 
prohibition  or  command  not  to  do  certain  things  is  laid  on  the 

*  I  have  already  (ante,  p.  181)  had  occa-  of  the  Council  and  Assembly,  to  make  laws 

sion  to  notice  what  are  called  the  principles  for  the  province — such  laws  not  being  repug- 

of  the  English  Constitution,  and  have  stated  ncn>t  to  this  act,  or  such  parts  of  an  act  of  the 

the  fact  that  they  do  not  in  any  wise  interfere  31  Geo.  Ill  as  are  not  repealed,  or  to  any  act 

with  the  theoretical  supremacy  of  the  British  of  Parliament  made  or  to  be  made  and  not 

Parliament.      Mr.    Justice    Story    has    said,  hereby  repealed,  which  does  or  shall  by  xex- 

"  According  to  the  theory  of  the  British  Con-  press  enactment  or  by  necessary  intendment 

stitution,  their  Parliament  is  omnipotent.    To  extend  to  the  provinces  of  Upper  and  Lower 

annul  corporate  rights  might  give  a  shock  to  Canada,  or  to  either  of  them,  or  to  the  province 

public  opinion  which  that  government  has  of  Canada.     The  act,  however,  maiuly  relates 

chosen  to  avoid  ;  but  its  power  is  not  ques-  to  the  arrangement  and  distribution  of  politi- 

tioiied."     Dartmouth  College  v.  Woodward,  4  cal  power,  including  the  subject  of  the  church, 

Wheat.  518.     "The  absolute  power  of  the  taxation,  and  the  judiciary,  and  does  not  seem 

Legislature,"  says  Mr.  Hallam,   speaking  of  to    contain,    except    incidentally,   any   such 

the  resumption  of  the  Irish  grants  in   1699,  guaranties  of  private  rights  as  are  to  be  found 

"in  strictness  is  as  arbitrary  in  England  as  in  in  our  State  Constitutions.     It  is  interesting, 

Persia." — fJallam's  Const.  JJist.  vol.  iii,  p*.  193,  however,  as  containing  the  germ  of  the  great 

cb.  xv.  principle  of   Constitutional   limitation   upon 

In  regard  to  Canada,  I  may  notice  that  legislative  power. 

an   act    was    passed    in    1840,    entitled    an  f  The  term  Constitution,  like  many  others 

act  to  re-unite  the  provinces  of  Upper  and  in  our  law,  appears  to  claim  a  Latin  original, 

Lower  Canada,  and   for  the  government  of  and  to  have  b^en  primarily  used  for  the  will 

Canada,  23d  July,  1840 — 3  and  4  Viet.  c.  xxxv  of  the  sovereign  declaring,  decreeing,  and  ex- 

— which   operates  as  a  sort  of  Constitution  pounding  the  law.     "  Quodcumqiie,  igitur,  Im- 

i'or  the  united  provinces.     The  act  declares  perator  per  epistnlam  el  subscriptionem  statuit, 

that  from  and  after  the  re-union  of  the  two  vel  cognoxcens  decrevit,  vel  de  piano  interlocutus 

provinces,  there  shall  be  in  the  province  a  est,  vel  edicto  prascepit,  Itgem  esse  constat.   Hcec 

Legislative  Council  and  Assembly,  and  that  sunt  quas  vulgo  Cvnstitutiones  appellamus." — 

within  the  province  Her  Majesty  shall  have  Dig.  de  Constitutionibus  Primipum,  ].!,§!; 

power,  by  and  with  the  advice  and  consent  Vicat.  Vocab.  Utriumq.  Juris,  in  voc. 


406  CONSTITUTIONAL  LAW. 

Legislature,  but  not  a  word  is  said  as  to  the  mode  in  which  the 
fact  of  violation  is  to  be  established,  or  how  the  prohibition  is 
to  be  enforced. 

If  the  draughtsmen  of  our  Constitutions  thought  it  wisest 
to  leave  this  important  point  to  be  decided  by  the  practical 
sagacity  of  the  people  for  whom  they  were  framing  new  insti- 
tutions, the  event  has  thus  far  justified  their  confidence.  No 
difficulty  whatever  has  as  yet  resulted  from  the  absence  of  any 
specific  provision  on  the  subject ;  the  authority  to  determine 
the  constitutionality  of  a  law,  or,  in  other  words,  to  decide 
whether  the  Legislature  has  in  a  given  case  overstepped  the 
line  of  the  Constitution,  and  the  power  to  arrest  the  action  of 
the  ministerial  officers  of  justice  when  a  decision  adverse  to 
the  validity  of  a  law  is  arrived  at,  have  been  claimed  by  and 
surrendered  to  the  judiciary.  Nor  is  it  less  curious  to  ob- 
serve that  this  is  the  result  of  the  action  of  the  judiciary  itself. 

The  subject  was  early  considered  in  a  case  in  Pennsylvania; 
and  Mr.  Justice  Patterson  asserted  the  power  of  the  judiciary 
in  very  distinct  and  emphatic  terms.  He  said,  "  It  is  an  im- 
portant principle  which,  in  the  discussion  of  questions  of  the 
present  kind,  ought  never  to  be  lost  sight  of,  that  the  judiciary 
in  this  country  is  not  a  subordinate  but  a  co-ordinate  branch  of 
the  Government;  and  whatever  may  be  the  case  in  other 
countries,  yet  in  this  there  can  be  no  doubt,  that  every  act  of 
the  Legislature  repugnant  to  the  Constitution  is  absolutely 
void."  * 

In  New  York,  the  rule  was  asserted  in  I791;f  in  South 
Carolina,  in  1792  ;  J  and  in  1802,  in  Maryland.  |  Finally,  the 
whole  subject  was  elaborately  examined  and  discussed  by  the 
Supreme  Court  of  the  United  States,  and  the  principle  delib- 
erately and  definitively  settled,  that  the  power  of  determining 
whether  a  given  law  is  repugnant  to  the  principles  of  a  Consti- 
tution with  which  it  is  alleged  to  conflict  belongs  to  the  judi- 
ciary, and  that  their  decision  is  conclusive.^ 

*  Van   Home's    Lessee  v.   Dorrance,    2  Lindsay  v.  The  Charleston  Commissioners,  2 

Dallas,  304,  a  case  in  relation  to  the  terri-  Bay,  38. 

torial  controversy  between  Pennsylvania  and  ||  Whittington  v.  Polk,   1  Harr.  &  J.236. 

Connecticut.  ^]"  Marbury  v.  Madison,    1  Cranch,   137 ; 

f  Hay  burne's  Case.  Kent  Com.  1,  451. 

\  Bowman   v.   Miduleton,    1   Bay,    252 ;  The  point,  however,  seems  to  have  been 


CONSTITUTIONAL  LAW. 


407 


Since  this  period  the  power  has  been  repeatedly  asserted  and 
universally  recognized.  "  It  is  the  duty  of  the  judiciary,  as  the 
appropriate  means  of  securing  to  the  people  safety  from  legisla- 
tive ao-oression,  to  annul  all  legislative  action  without  the  pale 

<~5O  /  O  •*• 

of  our  written  Constitutions."  * 

The  Constitutions  of  the  several  States  of  the  American 
Union  generally  contain,  sometimes,  in  the  shape  of  a  declara- 
tion or  bill  of  rights,  the  enunciation  of  certain  general  princi- 
ples of  free  government  which  are  intended  to  be,  as  it  were, 
the  foundations,  or  to  serve  as  the  landmarks,  of  liberty  and 
law.  Such  are  the  declarations  of  the  natural  equality  of  man 
— of  the  abstract  right  to  life,  liberty,  and  the  pursuit  of  happi- 
ness. To  these  I  have  already  had  occasion  to  call  the  attention 
of  the  reader,  f  And  of  these,  as  I  have  remarked,  many  are 


open  in  Pennsylvania  as  late  as  1825.  In  that 
year,  the  power  of  the  judiciary  over  uncon- 
stitutional acts  of  the  Legislature  was  much 
discussed  in  Eakin  v.  Raub,  12  Serg.  &  Rawle, 
330.  By  the  Pennsylvania  act 'of  26th  of 
March,  1785,  §  2,  the  right  of  entry  into  lands 
was  taken  away  after  the  expiration  of  twenty- 
one  years  next  after  the  title  of  the  claimant 
accrued;  but  the  fourth  section  saved  the 
rights  of  persons  beyond  seas,  and  gave  them 
ten  years  after  coming  into  the  United  States 
to  commence  an  action.  An  act  of  the  llth 
of  March,  1815,  repealed  the  fourth  section  of 
the  act  of  1785,  so  far  as  the  same  related  to 
persons  beyond  the  seas,  and  extended  the 
limitation  of  the  second  section  of  the  act  of 
1785  to  them.  A  court  of  Common  Pleas  held 
this  act  to  be  retrospective  in  its  operation, 
so  as  to  form  au  immediate  bar  to  the  claims 
of  persons  beyond  sea,  who  had  been  out  of 
possession  twenty-one  years  prior  to  the  pas- 
sage of  the  act  of  1815.  The  Supreme  Court 
of  Pennsylvania  held,  that  if  the  act  were  re- 
trospective, it  would  be  unconstitutional  and 
void,  but  that  it  must  be  construed  to  be  pro- 
spective in  its  operation;  and  they  reversed 
the  judgment  below.  In  delivering  the  opin- 
ion, however,  much  care  was  taken  in  the  dis- 
cussion of  the  true  functions  of  the  judges 
in  regard  to  laws  clearly  unconstitutional. 
Tilghman,  C.  J.,  and  Duncan,  J.,  asserted  the 
power  of  the  judiciary  to  declare  such  laws 
unconstitutional  and  void ;  but  Gibson,  then 
J.,  but  afterwards  C.  J.,  denied  it  so  far  as  it 
related  to  laws  conflicting  with  a  State  Con- 
stitution, while  he  admitted  it  as  to  laws  con- 
flicting with  the  Constitution,  laws,  or  treaties 
of  the  United  States,  under  the  clause  of  the 
Federal  Constitution  declaring  their  suprem- 
acy. But  in  regard  to  the  State  Constitutions, 


he  held  that  no  such  power  was  conferred  by 
them  on  the  judges,  and  that  it  rested  with  the 
people  alone  to  correct  abuses  in  legislation, 
by  instructing  their  representatives  to  repeal 
the  obnoxious  acts.  He  says,  up  to  that  time, 
though  the  power  had  been  asserted  (Austin 
v.  The  University  of  Pennsylvania,  1  Yeates, 
260),  it  had  never  been  exercised.  Since  that 
period  (1825),  however,  the  doctrine  seems  as 
firmly  established  in  Pennsylvania  as  in  the 
other  States.  See  in  this  case  Mr.  J.  Dun- 
can's opinion  in  regard  to  the  retrospective 
effect  of  repealing  acts  on  vested  rights,  for 
many  cases  cited.  Indeed,  the  learned  chi.ef 
justice  himself  seems  subsequently  to  have 
given  in  his  complete  adhesion  to  the  gener- 
ally received  doctrine.  In  a  more  recent  case, 
he  says,  "  It  is  idle  to  say  that  the  authority 
of  each  branch  of  the  government  is  denned 
and  limited  by  the  Constitution,  if  there  be 
not  an  independent  power  able  and  willing  to 
enforce  the  limitations.  *  *  From  its  very 
position,  it  is  apparent  that  this  conservative 
power  is  lodged  in  the  judiciary,  which,  in 
the  exercise  of  its  undoubted  rights,  is  bound 
to  meet  every  emergency,  else  causes  would 
be  decided  not  only  by  the  Legislature,  but 
sometimes  without  hearing  or  evidence."  De 
Chastelleux  v.  Fairchild,  15  Penn.  18.  In 
Georgia,  the  power  of  the  judiciary  over  un- 
constitutional enactments,  as  necessarily  flow- 
ing from  the  character  of  our  institutions,  was 
declared  in  Crimball  v.  Ross,  Charlton's  Rep. 
p.  175. 

"  The  right  of  all  courts,  State  as  well  as 
national,  to  declare  unconstitutional  laws  void, 
seems  settled  beyond  the  reach   of  judicial 
controversy."     Story  Coram.  §  1842. 
*  Beebe  v.  The  State,  6  Indiana,  501. 
f  Ante,  p.  153. 


408  CONSTITUTIONAL  LAW. 

framed  in  such  general  terms  as  scarcely  to  be  susceptible  of 
judicial  application;  other  constitutional  clauses  have  as  yet 
given  rise  to  no  question  of  legislative  power  or  judicial  con- 
struction, or  are  matters  of  local  or  comparatively  minor  interest. 
None  of  these  are  within  the  necessary  scope  of  this  work.  I 
shall,  consequently,  chiefly  confine  myself  to  the  consideration 
of  those  prominent  constitutional  provisions  which  are  to  be 
generally  found  in  the  Constitutions  of  all  the  States,  and  which, 
from  their  importance,  and  the  frequent  necessity  of  recurring 
to  them,  have  been  often  discussed  and  interpreted.  The  most 
important  of  these  appear  to  be  that  class  of  constitutional  re- 
strictions on  legislative  power  which  declare — 

That  private  property  shall  not  be  taken  for  public  uses 
without  compensation;  taking  in  connection  with  this  the  sub- 
ject of  taxation  and  police  regulations; 

That  the  right  to  trial  by  jury  shall  be  inviolate ; 

That  no  citizen  shall  be  deprived  of  life,  liberty,  or  property, 
except  by  the  law  of  the  land,  or  by  due  course  of  law; 

That  unreasonable  searches  and  seizures  shall  not  be  per- 
mitted. 

Some  of  the  decisions  upon  these  clauses  I  shall  now  proceed 
to  examine,  in  order  to  exhibit  the  practical  operation  and  effect 
of  these  constitutional  limitations.  Before  doing  so,  however, 
it  is  necessary  to  consider  the  general  doctrines  upon  which  the 
courts  act  in  construing  the  provisions  of  the  State  Constitutions. 
Whether  there  be  any  check  on  legislative  power  independent 
of,  or  in  addition  to  those  which  are  to  be  found  in  the  Consti- 
tution, is  a  question  which  we  have  already  examined  elsewhere ; 
and  I  need  only  here  refer  to  that  discussion.* 

*  Vide  ante,  ch.  v.     "No  court  can  pro-  al.  v.  The  Towns  of  Barnet,  Ryegate,  etal.  15 

nounce  any  act  of  the  Legislature  void  for  any  Verm.  745. 

supposed  inequality  or  injustice  in  its  opera-  In  Indiana,  it  has  been  held  that  so  much 

tion,  provided  it  be  on  a  subject-matter  fairly  of  the  act  to  prohibit  the  manufacture  and 

•within  the  scope  of  legislative  authority,  and  sale  of  spirituous  and  intoxicating  liquors,  ap- 

the  provisions  of  the  law  be  general.     Hence  proved  February  16,  1855,  as  is  prohibitory 

it  is  true,  no  doubt,  that  the  Legislature,  by  of  the  right  to  manufacture  such  liquors,  and 

general  enactment,  might  tax  any  given  spe-  also  so  much  thereof  as  relates  to  the  estab- 

cies  of  property,  either  private  or  corporate,  lishment  of  agencies  and  the  appointment  of 

to  the  full  value  of  the  property  itself;  for  the  agents  to  sell  such  liquors,  is  unconstitutional 

power  of  taxation,  when  once  conceded  to  the  and  void,  as  conflicting  with  the  right  to  the 

Legislature  over  any  given  subject,   '  implies  enjoyment  of  property,  with  which  the  Legis- 

the  power  of  destruction  even,'  as  was  de-  lature  had  no  right  to  interfere.     Beebe  v. 

clared  in  the  case  of  M'Cull<>ch  v.  The  State  The  State,  6  Indiana,  501.     See  this  case  for 

of  Maryland,  4  Wheat.  316."     Armington  et  an  elaborate  discussion  of  the  power  of  the 


CONSTITUTIONAL  LAW.  409 

The  leading  rule  in  regard  to  the  judicial  construction  of 
constitutional  provisions,  is  a  wise  and  sound  one,  which  declares 
that,  in  cases  of  doubt,  every  possible  presumption  and  intend- 
ment  will  be  made  in  favor  of  the  constitutionality  of  the  act  in 
question,  and  that  the  courts  will  only  interfere  in  cases  of  clear 
and  unquestioned  violation  of  the  fundamental  law.  It  has 
been  repeatedly  said  that  the  presumption  is  that  every  State 
statute,  the  object  and  provisions  of  which  are  among  the 
acknowledged  powers  of  legislation,  is  valid  and  constitu- 
tional; and  such  presumption  is  not  to  be  overcome  unless 
the  contrary  is  clearly  demonstrated,*  "Courts  ought  not," 
says  the  learned  Chancellor  of  the  State  of  New  York,  "  except 
in  cases  admitting  of  no  reasonable  doubt,  take  upon  them  to 
say  that  the  Legislature  has  exceeded  its  power  and  violated 
the  Constitution,  especially  where  the  legislative  construction 
has  been  given  to  the  Constitution  by  those  who  framed  its 
provisions  and  contemporaneous  with  its  adoption."  f  "  It  has 
been  always  said,"  says  the  Supreme  Court  of  New  York,  "that 
the  power  of  the  courts  of  justice  to  declare  the  nullity  of  leg- 
islative acts  which  violate  the  provisions  either  of  the  Constitu- 
tion of  the  United  States  or  of  the  State,  while  it  is  undoubted, 
shall  be  exercised  with  extreme  caution,  and  never  where  a  seri- 
ous doubt  exists  as  to  the  true  interpretation  of  the  provisions 
alleged  to  be  repugnant.  Especially  has  this  been  said  to  be 
so  when  the  objections  do  not  touch  the  substance  of  the  law 
or  the  authority  of  the  Legislature,  but  are  merely  criticisms  on 
its  sense  and  phraseology."  J  So  in  Illinois,  it  has  been  said, 
the  inquiry  into  the  validity  of  an  act  on  the  ground  that  it  is 
unconstitutional,  is  an  inquiry  whether  "  the  will  of  the  repre- 
sentative as  expressed  in  the  law.  is  or  is  not  in  conflict  with 
the  will  of  the  people  as  expressed  in  the  Constitution.  And 
unless  it  be  clear  that  the  Legislature  has  transcended  its  au- 

State  Legislature  independent  of  the  State  of  Philadelphia,  per  Black,  C.  J.,  21  Penn.  147, 

Constitutions.  161. 

In  Pennsylvania,  it  has  been  said  that  "  the  *  Fletcher  v.  Peck,  6  Cranch,  87  ;  ex  pnrte 

General  Assembly  cannot  pass  any  law  to  M'Collom,  1  Cowen,  564  ;  Morris  v.  The  Peo- 

conflict  with  the  rightful  authority  of  Con-  pie,  3  Denio,  381 ;  Newell  v.  The  People,  3 

gress,  nor  perform   a  judicial   or   executive  Seld.  109,  per  Edmonds,  J. ;  De  Camp  v.  Eve- 

lunction,  nor  violate  the  popular  privileges  land,  19  Barb.  81. 

reserved  by  tbe  Declaration  of  Rights,  nor  f  Clark  v.  The  People,  26  "Wend.  599. 

change  the  organic  structure  of  the  govern-  \  The  Sun  Mutual  Insurance  Co.  v.  The 

ment,  nor  exercise  any  other  power  prohib-  City  of  New  York,  5  Sandford,  10. 
ited  in  the  Constitution."     Sharpless  v.  Mayor 


410 


CONSTITUTIONAL  LAW. 


thority,  the  courts  will  not  interfere."  *  In  Massachusetts,  it 
has  been  said  that  "acts  of  a  Legislature  constitutionally  organ- 
ized are  to  be  presumed  constitutional,  and  it  is  only  where  they 
manifestly  infringe  some  of  the  provisions  of  the  Constitution, 
or  violate  the  rights  of  the  subject,  that  their  operation  and 
effect  can  be  impeded  by  the  judicial  power."  f  In  Pennsyl- 


*  Lane  et  al.  v.  Dorman  et  ux.  3  Scam.  238. 
In  Maryland,  it  has  been  said,  that  it  is  the 
province  of  the  judiciary  to  decide  upon  the 
law  arising  in  questions  before  them,  and 
upon  the  Constitution  as  the  paramount  law. 
But  it  is  more  in  fulfilment  of  their  own  duty 
than  to  restrain  the  excesses  of  a  co-ordinate 
department  of  the  Government.  Crane  v.  Me- 
ginnis,  1  Gill  &  Johnson,  463. 

f  Foster  et  al.  v.  The  Essex  Bank,  16  Mass. 
245.  See  this  case  for  a  discussion  of  the 
power  of  the  Legislature  to  pass  retrospective 
laws.  A  banking  company  was  incorporated 
in  1799  for  the  term  of  twenty  years.  In 
1819.  before  the  term  had  expired,  a  general 
law  was  passed  whereby  all  corporations  then 
existing  and  thereafter  to  be  established, 
whose  power  would  expire  at  a  given  time, 
were  to  be  continued  in  existence  as  bodies 
corporate,  for  three  years  after  the  time  lim- 
ited by  the  charter,  for  the  purpose  of  suing 
and  being  sued,  settling  and  closing  their  con- 
cerns, and  dividing  their  capital  stock,  but 
not  for  continuing  their  business.  After  suit 
brought  by  the  plaintiff,  the  twenty  years  for 
which  the  bank  was  originally  chartered  ex- 
pired, and  a  suggestion  was  filed  that  the  cor- 
poration was  dissolved.  It  was  insisted  that 
the  act  of  1819  was  retrospective,  and  that  it 
impaired  the  obligation  of  contracts,  and  that 
it  violated  vested  rights, — on  the  ground  that 
the  right  of  the  corporation  was  to  exist  for 
twenty  years,  that  this  right  could  in  no  way 
whatever  be  interfered  with,  and  that  the  con- 
tract was  altered.  The  objection,  however, 
was  overruled.  It  was  decided  that  the  law 
was  within  the  constitutional  power  of  the 
Legislature,  and  the  banking  corporation 
were  held  to  answer.  Parker,  J.,  said,  "If 
the  Legislature  were  to  enact  that  A.  H.  was 
guilty  of  treason,  and  that  he  should  suffer 
the  penalty  of  death,  it  would  be  the  sworn 
duty  of  the  court,  or  of  any  menber  of  it,  to 
grant  a  habeas  corpus  and  discharge  him.  Or 
if  they  should  enact  that  his  estate  should  be 
confiscated  or  transferred,  or  taken  for  the 
use  of  the  public  without  an  equivalent,  such 
acts  would  not  be  laws,  and  they  never  could 
be  executed  but  by  a  court  as  corrupt  or  as 
passionate  as  the  Legislature  which  should 
have  passed  them. 

"  So,  if  the  Legislature  should  attempt  to 
destroy  or  impair  the  legal  force  of  contracts, 
by  declaring  that  those  who  were  indebted 
should  be  discharged  without  paying  their 


debts,  or  on  paying  a  less  sum  than  they 
owed,  or  in  something  different  from  what 
was  agreed,  such  acts  would  be  unconstitu- 
tional although  not  expressly  prohibited  ;  be- 
cause, by  the  fundamental  principles  of  legis- 
lation, the  law  or  rule  must  operate  prospec- 
tively  only,  unless  in  cases  where  the  public 
safety  and  convenience  require  that  errors 
and  mistakes  should  be  overruled;  the  power 
to  do  which  has  been  immemorially  exercised, 
and  is,  we  believe,  within  the  constitutional 
power  of  the  Legislature,  for  it  is  doing  no 
one  wrong  to  prevent  his  taking  advantage  of 
a  mere  error  or  mistake.  The  law  complained 
of  is  a  general  law,  operating  upon  all  bodies 
corporate;  and  it  is  convenient  for  them  and 
the  public  that  their,  power  of  suing  and  be- 
ing sued  should  be  continued  beyond  the 
period  within  which  they  are  empowered  to 
make  contracts,  in  order  that  their  concerns 
may  be  properly  adjusted.  Upon  the  whole, 
we  cannot  discern  any  principle  by  which  it 
can  be  decided  that  this  statute  is  void.  It  is 
not  retrospective  in  the  proper  sense  of  that 
term,  for  it  provides  for  a  future  existence  of 
the  corporation  for  limited  and  specific  pur- 
poses. It  does  not  infringe  or  interfere  with 
any  of  the  privileges  secured  by  the  charter, 
unless  it  be  considered  a  privilege  to  be  se- 
cured from  the  payment  of  debts  or  the  per- 
formance of  contracts ;  and  this  is  a  kind  of 
privilege  which  we  imagine  the  Constitution1 
was  not  intended  to  protect.  It  does  not  im- 
pair the  force  or  obligation  of  contracts,  but 
on  the  contrary  provides  a  way  of  enforcing 
them  both  in  favor  of  and  against  the  corpo- 
ration. 

"  Many  statutes  have  been  referred  to  in 
the  argument,  which  are  much  more  question- 
able as  'to  their  constitutionality,  than  the 
one  under  consideration :  The  statutes  of  lim- 
itation, operating  upon  contracts  already  in 
force ;  The  suspension  of  those  statutes  after 
the  debtor  may  have  considered  that  he  had  a 
right  to  be  discharged  within  a  certain  pe- 
riod ;  The  statutes  made  for  curing  defects  in 
the  proceedings  of  courts,  towns,  officers,  <fec., 
When  the  party  to  be  affected  might  be  said 
to  have  a  vested  right  to  take  advantage  of 
the  error.  The  truth  is,  there  is  no  such 
thing  as  a  vested  right  to  do  wrong  ;  and  a 
Legislature  which,  in  its  acts  not  expressly 
authorized  by  the  Constitution,  limits  itself 
to  correcting  mistakes,  and  to  providing  reme- 
dies for  the  furtherance  of  justice,  cannot  be 


CONSTITUTIONAL  LAW.  411 

vania,  it  lias  been  expressly  declared  to  be  an  established  prin- 
ciple of  construction,  that  where  the  meaning  of  the  constitu- 
tional clause  is  doubtful,  a  statute  alleged  to  conflict  with  it 
must  be  held  valid.* 

Where,  however,  the  violation  of  the  Constitution  is  clear, 
no  argument  of  inconvenience  has  any  weight.  So  in  Indiana, 
it  has  been  said,  "  It  is  urged  in  argument  that  this  ruling  may 
be  a  deadly  blow  to  the  common-school  system,  of  Indiana." 
We  do  not  so  regard  it.  However  that  may  be,  the  responsi- 
bility does  not  lie  with  the  judiciary.  If  the  legislative  depart- 
ment will  infringe  on  the  Constitution,  the  duty  of  the  courts 
may  be  arduous  and  unpleasant,  but  it  is  a  plain  one,  regardless 
of  the  consequences,  f  So  in  the  same  State,  "  It  will  not  be  for 
us,"  says  the  Supreme  Court  of  Indiana,  "  to  inquire  whether 
the  law  be  a  good  or  a  bad  one  in  the  abstract,  unless  the  fact, 
as  it  might  turn  out  to  be,  should  become  of  some  consequence 
in  determining  a  doubtful  point  on  the  main  question,  that  is, 
whether  it  is  a  violation  of  the  Constitution. "J 

This  subject  has  been  examined  by  a  very  learned  and 
accomplished  jurist  in  New  York,  and  the  following  language 
held : 

It  is  highly  probable  that  inconveniences  will  result  from  following  the  Con- 
stitution as  it  is  written.  But  that  consideration  can  have  no  weight  with  me. 
It  is  not  for  us,  but  for  those  who  made  the  instrument,  to  supply  its  defects. 
If  the  Legislature  or  the  courts  may  take  that  office  upon  themselves,  or  if, 
under  color  of  construction,  or  upon  any  other  specious  ground,  they  may  de- 
part from  that  which  is  plainly  declared,  the  people  may  well  despair  of  ever 
being  able  to  set  a  boundary  to  the  powers  of  the  Government.  Written  Con- 
stitutions will  be  worse  than  useless. 

Believing,  as  I  do,  that  the  success  of  free  institutions  depends  on  a  rigid 
adherence  to  the  fundamental  law,  I  have  never  yielded  to  considerations  of 
expediency  in  expounding  it.  There  is  always  some  plausible  reason  for  the 
latitudinarian  constructions  which  are  resorted  to  for  the  purpose  of  acquiring 

charged  with  violating  its  duty  or  exceeding  and  is  in  fact  nothing  more  than  establishing 

its  authority.      Had  they  provided  that  all  a  mode  by  which  their  business  may  be  closed 

corporations  should  cease  to  transact  business  and  their  co.  tracts  carried  into  execution." 

three  years  before  the  time  for  which  they  *  The   Farmers    &    Mechanics'   Bank   T. 

were    created,  expired,  in    order  that    they  Smith,  3  Serg.  &  R.  63,,  73  ;  Stewart  v.  Board 

might  bring  their  affairs  to  a  close,  it  might  <fec.  of  Polk  Co.  30  Iowa,  9  ;  Newson  v.  Cocke, 

justly  be  said  that  their  privileges  were  taken  44  Miss.   352  ;    City  v.  Empire  P.  R.  Co.  3 

away,  and  the  grant  of  the  Government  was  Brewst.  570. 

impaired.     But  to  provide  for  their  continu-  f  The  State  v.   Springfield  Township,   6 

ance  for  such  purpose,  three  years  bevond  Inciana,  84. 

tboir  term,  is  no  breach  of  their  privileges,  |  Beebe  v.  The  State,  6  Indiana,  601. 


412  CONSTITUTIONAL  LAW. 

power, — some  evil  to  be  avoided,  or  some  good  to  be  attained,  by  pushing  the 
powers  of  the  Government  beyond  their  legitimate  boundary.  It  is  by  yield- 
ing to  such  influences  that  Constitutions  are  gradually  undermined,  and  finally 
overthrown.  My  rule  has  ever  been  to  follow  the  fundamental  law  as  it  is 
written,  regardless  of  consequences.  If  the  law  does  not  work  well,  the  people 
can  amend  it ;  and  inconveniences  can  be  borne  long  enough  to  await  that 
process.  But  if  the  Legislature  or  the  courts  undertake  to  cure  defects  by 
forced  and  unnatural  constructions,  they  inflict  a  wound  upon  the  Constitution 
which  nothing  can  heal.  One  step  taken  by  the  Legislature  or  judiciary  in  en- 
larging the  powers  of  the  Government  opens  the  door  for  another,  which  will 
be  sure  to  follow  ;  and  so  the  process  goes  on,  until  all  respect  for  the  funda- 
mental law  is  lost,  and  the  powers  of  the  Government  are  just  what  those  in 
authority  please  to  call  them.* 

As  in  regard  to  statutes,  so  in  regard  to  Constitutions : 
contemporaneous  and  legislative  expositions  are  frequently  re- 
sorted to,  to  remove  and  explain  ambiguities.  So,  in  regard  to 
the  Constitution  of  the  United  States,  it  was  objected  that 
the  judiciary  act  of  1789  was  unconstitutional,  on  the  ground 
that  it  assigned  circuit  duty  to  the  judges  of  the  Supreme 
Court.  But  the  Supreme  Court  said,  in  1803,  "  To  this 
objection,  which  is  of  recent  date,  it  is  sufficient  to  observe 
that  practice,  and  acquiescence  under  it  for  a  period  of  several 
years,  commencing  with  the  organization  of  the  judicial  system, 
affords  an  irresistible  answer,  and  has,  indeed,  fixed  the  con- 
struction. It  is  a  contemporary  interpretation  of  the  most 
forcible  nature.  This  practical  exposition  is  too  strong  and 
obstinate  to  be  shaken  or  controlled."  f  And  the  same 
language  has  been  held  in  regard  to  State  Constitutions.  In 
Pennsylvania,  it  has  been  said  that  "  the  uniform  construction 
given  to  a  provision  of  the  Constitution  by  the  Legislature, 
with  the  silent  acquiescence  of  the  people,  including  the  legal 
profession  and  the  judiciary,  and  the  injurious  results  which 
would  ensue  from  a  contrary  interpretation,  are  proper  elements 
of  a  legal  judgment  on  the  subject."  J  So  in  New  York, — 
"  Great  deference,"  says  Marcy,  J.,  in  the  Supreme  Court,  "  is 
certainly  due  to  a  legislative  exposition  of  a  constitutional 
provision,  and  especially  when  it  is  made  almost  contempora- 

*  Bronson,  J.,  in  Oakley  v.  Aspinwall,  3  188;  Norris  v.  Clymer,  2  Perm.  277.     As  to 

d.>ms.  547,  668.  how   far   expediency   and   former  legislation 

f  Stunrt  v.  Laird,  1  Granch,  299.  may  be  considered,  see  Baltimore  v.  State,  15 

j  Moers  v.  The  City  of  Reading,  21  Penn.  Md.  376  ;  Sadler  v.  Langham,  34  Ala.  311. 


CONSTITUTIONAL  LAW.  413 

neously  with  such,  provision,  and  might  be  supposed  to  result 
from  the  same  views  of  policy  and  modes  of  reasoning  which 
prevailed  among  the  framers  of  the  instrument  expounded."  * 
"  Upon  a  question  of  real  doubt,"  says  Chancellor  Wa1  worth, 
in  the  Court  of  Errors  in  New  York,  "  as  to  the  meaning  of  a 
particular  clause  in  the  Constitution,  a  legislative  construction, 
if  deliberately  given,  is  certainly  entitled  to  much  weight, 
although  it  is  not  conclusive  upon  the  judicial  tribunal."  f 

As  to  the  general  rules  of  construction  and  interpretation 
to  be  applied  to  the  particular  phraseology  of  a  statute,  it  has 
been  said  by  the  Court  of  Appeals  of  Maryland,  "  that  Con- 
stitutions are  not  to  be  interpreted  according  to  the  words 
used  in  particular  clauses.  The  whole  must  be  considered 
with  a  view  to  ascertain  the  sense  in  which  the  words  were 
employed;  and  its  terms  must  be  taken  in  the  ordinary  and 
common  acceptation,  because  they  are  supposed  to  have  1  een 
so  understood  by  the  framers  and  by  the  people  who  adopted 
it.  This  is  unquestionably  the  correct  rule  of  interpretation. 
It,  unlike  the  acts  of  our  Legislature,  owes  its  whole  force  and 
authority  to  its  ratification  by  the  people ;  and  they  judged  it 
by  the  meaning  apparent  on  its  face  according  to  the  general 
use  of  the  words  employed,  when  they  do  not  appear  to  have 
been  used  in  a  legal  or  technical  sense."  J 

The  principle  that  a  statute  is  void  only  so  far  as  its 
provisions  are  repugnant  to  the  Constitution,  that  one  pro- 
vision may  thus  be  void,  and  this  not  affect  other  provisions  of 
the  statute,  has  been  frequently  declared.  I  (a)  "  The  principle 

*  People  v.  Green,  2  "Wend.  266,  274.  Marshall,  73 ;  Ely  v.  Thompson,  3  Wash.  C. 

t  Coutant  v.  The  People,  11  Wend.  511.  C.  R.  313  ;  Gibbons  v.  Ogden,  9  Wheaton ;  1, 

\  Manly  v.  The  State,  7  Maryland,  135.  203;  City  of  New  York  v.  Miln,    11    Peters, 

See  also  Cronise  v.  Cronise,  54  Penn.  St.  255.  102 ;  Clark  v.  Ellis,  2  Blackf.  8. 
|   Edwards    v.    Pope,    3    Scam.    465;    3 

(a)  Unconstitutional  in  Part. — If  the  part  which  is  unconstitutional  is  not  vital 
to  the  statute,  it  will  not  vitiate  the  whole.  People  v.  Hill,  7  Cal.  97;  McCulloch 
v.  State,  11  Ind.  424 ;  Nelson  v.  People,  33  111.  390.  Where  part  only  of  a  statute 
or  section  is  unconstitutional,  that  part  only  is  void  unless  the  other  provisions  are 
so  dependent  and  connected  that  it  cannot  be  presumed  the  Legislature  would  have 
passed  one  without  the  other.  Commonwealth  v.  Hitchings,  5  Gray,  482  ;  State  v. 
Wheeler,  25  Conn.  290.  The  question  is  whether  the  part  which  is  unconstitutional 
can  be  separated  and  stand  by  itself;  if  so  it  will  be  maintained.  Mobile  &c.  R.  R. 


414  CONSTITUTIONAL  LAW. 

is  now  well  understood,"  says  the  Supreme  Court  of  the  State 
of  Massachusetts,  "  that  where  a  statute  has  been  passed  by 
the  Legislature  under  all  the  forms  and  sanctions  requisite 
to  the  making  of  laws,  some  part  of  which  is  not  within  the 
competency  of  the  legislative  power,  or  is  repugnant  to  any 
provision  of  the  Constitution,  such  part  thereof  will  be  adjudged 
void  and  of  no  ava.il ;  whilst  all  other  parts  of  the  act,  not 
obnoxious  to  the  same  objection,  will  be  held  valid  and  have 

v.  State,  29  'Ala.  573 ;  Lynch  v.  Steamer  Economy,  27  Wise.  69 ;  Mayor  &c.  v. 
Dechert,  32  Md.  369.  And  the  same  is  true  where  part  of  a  statute  is  void  for 
uncertainty.  State  v.  Hundhaussen,  26  Wise.  432. 

Where  an  act  was  to  take  effect  upon  the  popular  vote  of  a  municipality,  and 
certain  provisions  of  it  are  unconstitutional,  the  court,  in  determining  whether  such 
provisions  are  separable,  so  that  the  rest  can  stand,  are  not  to  consider  whether  the 
voters  would  have  regarded  such  provisions  as  vital  to  the  whole  act.  Robinson  v. 
Bidwell,  22  Cal.  379. 

It  has  been  held  that  a  void  clause  submitting  a  statute  to  the  popular  vote  will 
not  invalidate  the  whole  statute.  Santo  v.  State,  2  Clarke  (la.)  165.  But  the  over- 
whelming weight  of  authority  is  the  other  way.  See  note  on  "  Submission  of  laws  to 
a  popular  vote." 

Unconstitutional  police  provisions  in  an  election  law  will  not  invalidate  the 
election.  Andrews  v.  Saucier,  13  La.  Ann.  301.  And  though  the  exemptions  in  a 
tax  law  are  void,  the  rest  is  valid.  People  v.  McCreery,  34  Cal.  432. 

It  has  been  held  that  where  a  law  itself  unconstitutional  expressly  repeals  all 
laws  inconsistent  therewith,  the  repealing  clause  is  operative.  Meshmeier  v.  State, 
11  Lid.  482  ;  per  contra,  see  People  v.  Tephaine,  3  Parker  Cr.  241,  and  see  '•  Repeal." 

In  the  following  cases  the  void  parts  of  the  statute  have  been  held  separable: 
Maize  v.  State,  4  Ind.  342;  Carleton  v.  People,  10  Mich.  250,  per  Martin,  C.  J. ; 
Brown  v.  Beatty,  34  Miss.  227;  Wakeley  v.  Mohr,  15  Wise.  609;  Kennedy  v. 
Milwaukee  &c.  R.  R.  22  Wise.  581 ;  Robinson  v.  Bidwell,  22  Cal.  379 ;  Maclay  v. 
Love,  25  Cal.  367;  Mills  v.  Sargent,  36  Cal.  379;  Allen  County  v.  Silvers,  22  Ind. 
491. 

But  Avhere  the  void  provisions  were  evidently  intended  as  compensations  or 
inducements  for  the  valid  provisions,  so  as  to  make  a  presumption  that  the  latter 
would  not  have  been  passed  without  them,  the  whole  will  be  void;  e.  g.,  where  a 
provision  changing  the  rate  of  taxation  of  land  annexed  to  a  city  was  uncon- 
stitutional, the  annexation  was  held  void.  Slauson  v.  Racine,  13  Wise.  398 ;  State 
v.  Dousman,  28  Wise.  541.  And  where  a  provision  for  testing  the  validity  of  tax 
titles  was  held  void,  another  one  in  the  same  act  making  tax  titles  conclusive  in  a 
certain  event,  was  so  connected  with  the  former  as  to  full  with  it.  Quinlan  v. 
Rogers,  12  Mich.  168.  In  general  where  the  different  portions  of  the  statute  form 
"inseparable  parts  of  the  same  system,"  the  whole  is  invalidated  by  the  uncon- 
stitutionally of  a  part.  Campau  v.  Detroit,  14  Mich.  276;  Lathrop  v.  Mills,  19 
Cal.  513;  State  v.  Perry  County,  5  Ohio,  N.  S.  497;  Oatman  v.  Bond,  15  Wise.  20; 
Reed  v.  Omnibus  R.  R.  33  Cal.  212. 


CONSTITUTIONAL  LAYvr.  415 

the   force  of  law.     There   is  nothing  inconsistent  in  declaring 
one  part  of  the  same  statute  valid  and  another  part  void."  * 

It  seems  to  be  settled  in  regard  to  Constitutions  as  to 
statutes,  that  no  extrinsic  evidence  can  be  received  as  to  their 
intent  or  meaning.  "  A  Constitution  or  a  statute  is  supposed 
to  contain  the  whole  will  of  the  body  from  which  it  emanated; 
and  I  would  just  as  soon  resort  to  the  debates  in  the  Legis- 
lature for  the  constitutionality  of  an  act  of  Assembly,  as  to  the 
debates  in  the  convention  for  the  construction  of  the  Con- 
stitution." f 

I  have  already  had  occasion  to  notice,  that  Constitutions, 
like  statutes,  are  in  some  cases  construed  to  be  directory 
merely.^  Indeed,  the  following  language  has  been  used  by 
a  very  accomplished  judge  in  Pennsylvania:  "That  every 
thing  in  the  Constitution  addressed  to  the  Legislature  by  way 
of  positive  command  is  purely  directory,  will  hardly  be  dis- 
puted. It  is  only  to  enforce  prohibitions,  that  the  interposition 
of  judicial  authority  is  thought  to  be  warrantable."*  |  (a) 

In  regard  to  the  change  of  a  State  Constitution,  it  has  been 
held  that  the  new  Constitution  creates  no  new  State,  that 
all  laws  in  force  when  the  latter  took  effect,  and  which  were 
not  inconsistent  with  it,  remained  in  force  without  an  express 
provision  to  that  effect,  and  that  all  inconsistent  or  repugnant 
laws  were  repealed  by  implication ;  and  where  the  new  Con- 
stitution of  the  State  of  Ohio  contained  a  clause  to  this  effect, 
"  The  General  Assembly  shall  never  authorize  any  county, 
town,  or  township,  by  vote  of  its  citizens  or  otherwise,  to 
become  a  stockholder  in  any  joint-stock  company,  corporation, 
or  association  ; "  it  was  held  that  a  law  enacted  before  the 
adoption  of  the  new  Constitution,  authorizing  such  subscription, 

*  Fisher  v.  M'Girr,  1  Gray,  22 ;  Common-  J  Ante,  ch.  vii,  p.  324. 

wealth  v.  Kimball,  24.  Pick.  361;   Norris  v.  \  Per   Gibson,  J.,  in  Eakin  v.  Raub,   12 

Boston,  4  Met.  288 ;  Clark  v.  Ellis,  2  Black-  Serg.  &  Rawle,  354.     It  is,  however,  a  dis- 

ford,  10.  senting,  and   without  any  disrespect  to  this 

f  Per   Gibson,  J.,  in  Eakin  v.  Raub,  12  able  and  lamented  jurist,  I  may  add,  a  very 

Serg.   &  Rawle,  352.     It  is,  however,  a  dis-  heterodox  opinion;  vide  ante,  p.  40Y. 
senting  opinion. 

(a)  The  provision  of  the  Constitution  of  Tennessee,  directing  the  manner  of 
separating  counties  into  judicial  districts  is  held  to  be  political,  and  courts  can  give 
no  relief  against  a  violation  of  it  by  the  Legislature.  Britton  v.  Moody,  2  Cold.  15. 


416  CONSTITUTIONAL  LAW. 

was  not  repealed  by  implication,  as  the  new  clause  referred 
only  to  future  laws.  *  (a) 

The  Supreme  Court  of  Louisiana  has  very  discreetly  ex- 
pressed its  unwillingness  to  decide  a  question  as  to  the  uncon- 
stitutional! ty  of  the  law  of  another  State,  when  the  question 
was  still  open  in  the  State  which  passed  the  law,  and  the  case 
could  be  decided  on  other  grounds,  -f 

O  • 

In  regard  to  the  subject  of  strict  and  liberal  construction, 
considerations  analogous  to  those  which  we  have  discussed  un- 
der this  head  as  to  the  interpretation  of  statutes  present*  them- 
selves, in  regard  to  the  interpretation  of  Constitutions.  Where 
a  constitutional  provision  is  of  doubtful  import,  it  is  frequently 
susceptible  of  two  interpretations,  one  the  more  restricted  or 
severe,  and  the  other  more  enlarged  or  equitable.  Questions  of 
this  kind  have  presented  themselves  in  the  history  of  many  if 
not  all  the  individual  States ;  but  we  are  more  familiar  with 
them  in  regard  to  the  Federal  Constitution.  So  in  regard  to 
the  Bank  of  the  United  States,  it  was  contended  by  the  advo- 
cates of  an  enlarged  or  equitable  construction,  that  the  clause 
giving  Congress  power  to  make  all  laws  necessary  and  proper 
to  carry  into  execution  the  powers  specifically  granted,  con- 
ferred on  that  body  the  power  to  create  the  institution ;  while, 
on  the  other  hand,  the  advocates  of  a  stricter  interpretation,  in- 
sisted that  this  general  clause  could  only  be  used  to  'enlarge 
powers  already  expressly  given,  and  could  not  be  construed  to 
give  a  new  and  distinct  head  of  authority.  So  again,  the  advo- 
cates of  a  protective  tariff  have  found  the  congressional  author- 
ity in  the  clause  giving  power  to  regulate  commerce ;  while  the 
friends  of  free  trade  have  insisted  upon  a  stricter  construction, 
and  asserted  that  the  authority  to  regulate  commerce  could  not 
be  so  exerted  as  to  protect  manufactures. 

These  questions  have  given  rise  to  two  great  schools  of  con- 
struction :  the  topics  which  they  involve  are  of  perpetual  and 
vital  interest ;  but  they  approach  so  near  the  demesnes  of  poli- 

*  Oass  v.  Dillon,  22  Ohio,  COY.     But  see          f  Shelden  v.  Miller,  9  La.  Ann.  R.  187. 
Mr.  J.  llamsay's  able  dissenting  opinion. 

(a)  That  the  State  Constitutions  remained   unaffected   by  secession,  and   until 
legally  changed,  see  Scruggs  v.  Mayor,  45  Ala.  220. 


CONSTITUTIONAL  LAW.  417 

tics,  and  are  so  much  influenced  by  the  organization  and  shape 
of  parties,  that  they  are  out  of  place  here.  Still,  some  general 
considerations  are  too  apparent  to  be  overlooked.  An  arbitrary 
or  equitable  power  over  acts  of  ordinary  legislation  has  been 
resisted  on  the  ground  "  that  the  Legislature  is  ever  at  hand," 
as  it  has  been  said,  to  explain  its  meaning.  This  consideration 
in  favor  of  a  'restricted  interpretation  of  statutory  enactments, 
has  less  weight  in  regard  to  constitutional  law.  There  are,  as 
a  general  rule,  no  regular  or  frequent  convocations  of  the  people 
to  revise  or  consider  the  fundamental  law ;  and  in  regar'd  to  the 
Constitution  of  the  United  States,  any  serious  amendment,  re- 
quiring as  it  would  the  concurrence  of  two-thirds  of  the  Legis- 
latures of  all  the  States,  can  scarcely  be  thought  within  the 
regions  of  hope  or  probability ;  so  that  it  is  apparent  that  the 
arguments  of  hardship,  irregularity,  injustice,  and  inconvenience, 
will  address  themselves  to  the  judiciary  in  constitutional  cases 
with  more  force  than  in  regard  to  ordinary  legislative  acts, 
just  in  proportion  as  it  is  more  difficult  to  revise  a  Constitution 
or  to  escape  its  power,  than  to  amend  or  to  evade  a  statute.  An- 
other consideration  will  impress  itself  still  more  forcibly  on  the 
minds  of  those  who  are  called  to  consider  questions  connected 
with  the  interpretation  of  constitutional  law.  Statutes  can 
and  do  enter  into  t*he  details  of  our  daily  transactions ;  they  can 
and  do  prescribe  minute  directions  for  the  control  of  those  af- 
fected by  them.  Constitutions,  on  the  other  hand,  from  the 
nature  and  necessity  of  the  case,  in  many  instances  go  little 
beyond  the  mere  enunciation  of  general  principles ;  and  it  is 
impossible,  and  would  lead  to  endless  absurdity,  to  endeavor  to 
apply  to  a  declaration  of  principles  the  same  rules  of  construc- 
tion that  are  proper  in  regard  to  an  enactment  of  details.  In 
regard  to  a  statute,  the  general  duty  of  the  judge  is  that  of  a 
subordinate  power,  to  ascertain  and  to  obey  the  will  of  a  supe- 
rior ;  in  regard  to  a  Constitution,  his  functions  are  those  of  a 
co-ordinate  authority,  to  ascertain  the  spirit  of  the  fundamental 
law,  and  so  to  carry  it  out  as  to  avoid  a  sacrifice  of  those  inter. 
ests  which  it  is  designed  to  protect.  No  absolute  rules  of  in- 
terpreta£ion  in  such  a  matter  can  be  framed.  Still,  I  cannot 

27 


418  CONSTITUTIONAL  LAW. 

refrain  from  saying,  as  a  general  rule,  while  a  strict  adherence 
to  the  mere  letter  of  a  written  Constitution  would  render  our 
system  practically  intolerable,  that,  on  the  contrary,  a  loose 
and  careless  mode  of  intepretation  is  attended  by  the  most 
serious  dangers.  It  puts  all  our  institutions  in  the  power  of 
the  judiciary ;  it  abolishes  all  restraints  on  legislation,  and 
tends  directly  and  inevitably  to  alter  the  very  nature  of  our 
Government.*  (a) 

Having  thus  considered  the  general  principles  to  be  applied 
to  the  construction  of  constitutional  limitations  upon  legis- 
lative power,  we  approach  the  examination  of  particular  pro- 

*  The   analogies   of  history  often  throw  mankind."  See  Gibbon,  ch.  xliv.   Our  Labeos 

light  upon  the  annals  of  remote  and  obscure  and  Capitos,  our  Sabinians  and  our  Procu- 

periods;  and  our  schools  of  strict  and  liberal  leans,  might  easily  be  named.     Indeed,  the 

construction  may  tend  to  render  intelligible  analogies  between  the  whole  body  of  Roman 

the  sects  or  schools  of  Roman  law.     "  The  jurisprudence    and    the    English,    are    most 

freedom  of  Labeo  was  enslaved  by  the  rigor  curious  and  striking.     The  division  into  two 

of  l>is  own  conclusions.     He  decided  accord-  great  bodies,  of  strict  and  equitable  law;  the 

ing  to  the  letter  of  the  law  the  same  ques-  formulae  by  which  questions  of  fact  were  dis- 

tions  which  his  indulgent  competitor  (Capito)  tinguished  from  questions  of  law;  the  severe 

resolved  with  a  latitude  of  equity  more  suit-  regard  to  mere  symbolical  forms,  are  as  ap- 

able   to  the   common   sense   and  feelings  of  parent  in  the  one  system  as  the  other. 

(a)  Implied  Restrictions  in  the  Constitution. — Where  the  Constitution  reserves  to 
the  defendant  in  criminal  trials  before  justices  of  the  peace  the  right  of  appeal,  this 
does  not  imply  any  restriction  upon  the  power  of  the  Legislature  to  give  a  right  of 
appeal  to  the  prosecution.  State  v.  Tait,  22  Iowa,  141.  And  when  the  Constitution 
gives  to  resident  foreigners  the  same  property  rights  whicn  citizens  have,  this  does 
not  prevent  the  Legislature  from  giving  equal  rights  to  n on  resident  foreigners. 
Purczell  v.  Smith,  21  Iowa,  540.  A  Constitutional  provision  that  the  Board  of  Super- 
visors may  provide  for  laying  out  highways,  etc.,  does  not  prevent  the  Legislature 
from  conferring  concurrent  authority  upon  other  officials.  People  v.  Highway  Com- 
m'rs,  15  Mich.  347 ;  People  v.  Ingham  Co.  20  Mich.  95  ;  but  the  powers  of  a  Board  of 
Education  were  held  exclusive  in  Dist.  Township  &c.  v.  Dubuque,  7  Clarke  (la.)  262. 
"  The  State  may  continue  to  collect  all  specific  taxes  accruing  under  existing  laws. 
The  Legislature  may  provide  for  the  collection  of  specific  taxes  from  banking,  rail- 
road, plankroad,  and  other  corporations  hereafter  created ;"  held  no  implied  pro- 
hibition against  imposing  such  taxes  upon  unincorporated  companies.  Walcott  v. 
People,  17  Mich.  68.  An  act  for  registration  of  voters  was  held  void  as  conflicting 
with  implied  prohibitions  of  the  Constitution,  in  Page  v.  Allen,  58  Penn.  St.  338 ; 
but  see  Patterson  v.  Barlow,  60  Penn.  St.  54. 

The  schedule  or  ordinance  appended  to  the  Constitution,  and  submitted  to  the 
people  with  it  and  accepted  by  them,  forms  a  part  of  the  Constitution,  Stewart  v. 
Crosby,  15  Tex.  546 ;  but  a  provision  in  it  found  among  other  temporary  provis- 
ions, is  to  be  presumed  temporary.  State  v.  Taylor.  15  Ohio,  N.  S.  137. 

When  the  Constitution  Executes  itself. — As  to  what  provisions  require  legislation 
to  make  them  operative,  see  Goldman  v.  Clark,  1  Nev.  617 ;  People  v.  Highway 
Comm'rs,  15  Mich.  347. 


GUARANTY   OF  PRIVATE    PROPERTY.  419 

visions ;  and  of  these,  as  1  Lave  said,  there  is  none  more  im- 
portant than  that  which  declares  that— 

Private  Property  shall  not  be  Taken  for  Public  Purposes 
without  Compensation. — In  considering  the  subject  of  constitu- 
tional checks  as  imposed  in  this  country  on  legislative  power, 
we  find  two  limitations  of  paramount  importance;  the  one 
guaranteeing  the  inviolability  of  private  property,  the  other 
protecting  the  obligation  of  contracts;  the  one  intended  to 
guard  present  ownership  and  enjoyment,  the  other  to  secure 
future  transactions,  or  rights  of  property  not  yet  converted  in- 
to possession.  These  provisions  are  both  to  be  found  in  the 
Constitution  of  the  United  States,  (a)  and  the  latter  in  some  of 
the  State  Constitutions ;  but  as  the  one  in  regard  to  private 
property  is  to  be  found,  with  the  exception  of  New  Hampshire 
and  South  Carolina,*  in  all  the  State  Constitutions,  I  shall  con- 
sider it  under  our  present  head,  reserving  the  clause  in  regard 
to  the  obligation  of  contracts  till  we  come  to  the  subject  of  the 
Constitution  of  the  United  States. 

In  discussing  the  constitutional  guaranty  of  private  prop- 
erty, I  shall  first  consider  the  precise  nature  of  the  legislative 
power  over  private  property,  and  to  what  branch  or  branches 

*  The  Constitution  of  New  Hampshire  is  is  not  involved.  Since  the  decision  of  this 
silent  on  the  subject  of  compensation ;  but  it  case,  however,  the  precise  question  seems  to 
has  been  held  that  the  duty  to  provide  re-  have  been  considered  and  determined.  It 
numeration  is  none  the  less  imperative.  Bris-  was  held  in  a  case  growing  out  of  a  right  to  a 
tol  v.  New  Chester,  3  N.  H.  R.  535.  In  South  ferry,  that  the  Legislature  has  the  constitu- 
Carolina  there  is  no  constitutional  provision  tional  right  to  deprive  an  individual  of  his 
whatever ;  and  it  has  been  there  held  that  property  for  great  national  purposes.  Stark 
the  legislative  power  over  private  property  v.  M'Gowan,  1  Nott  and  M'Cord,  387. 
is  supreme  and  absolute.  The  State  v.  Daw-  On  the  other  hand,  in  New  Hampshire 
son,  3  Hill,  100.  This  was  an  indictment  for  the  abstract  right  to  compensation,  iudepend- 
obstructing  road  commissioners  in  cutting  ent  of  all  constitutional  provision,  has  been 
down  timber  to  repair  a  road;  the  act  giving  declared.  "The  power  of  the  Legislature  is 
them  general  power  to  take  so  much  timber,  limited,  undoubtedly,  in  its  nature,  by  the 
earth,  or  rock  as  should  be  necessary  to  keep  public  exigencies ;  but  it  is  a  power  recog- 
roads  in  repair.  The  case  was  chiefly  put  on  nized  by  the  Constitution,  There  is  no  doubt 
the  question  whether  the  act  infringed  the  that  when  this  power  is  exercised,  a  just  corn- 
constitutional  guaranty  of  the  "  law  of  the  pensation  is  to  be  made.  The  Constitutions 
land,"  which  we  shall  hereafter  consider.  It  of  some  of  the  States  expressly  declare  that 
was  upheld  chiefly  on  the  ground  of  long  such  compensation  shall  be  made  ;  and  natural 
usage  and  acquiescence:  and  Evans,  J.,  de-  justice  speaks  or  this  point  when  a  Constitu- 
livering  the  prevailing  opinion  of  the  court,  tion  is  silent."  Bristol  v.  New  Chester,  3 
says  expressly,  that  the  general  power  of  the  N.  H.  535. 
Legislature  to  appropriate  private  property, 

(a)  The  provision  in  the  Constitution  of  the  U.  S.  in  regard  to  taking  private 
property  is  directed  only  to  legislation  and  acts  of  the  limited  States.  Withers  v. 
Buckley,  20  How.  84. 


420  GUARANTY   OF  PRIVATE  PROPERTY. 

of  the  sovereign  power  of  the  State  the  restricting  clause  is  in- 
tended to  apply ;  secondly,  consider,  under  the  head  of  delega- 
tion of  the  power,  by  whom  it  can  be  exercised ;  thirdly,  exam- 
ine the  question,  wrhat  is  a  talcing  of  private  property  within 
the  meaning  of  the  clause ;  and  lastly,  speak  of  the  rules  which 
determine  how  and  when  compensation  must  be  made.  Before 
entering,  however,  into  this  examination,  it  is  proper  to  give 
the  leading  provisions  of  the  different  State  Constitutions  on 
.the  subject,  in  order  the  more  fully  and  accurately  to  understand 
the  precise  nature  of  the  question  as  it  presents  itself  in  the  sev- 
eral States,  (a) 

(a)   Constitutional  Provisions. — The  following  are  all  the  provisions  respecting  the 
exercise  of  the  right  of  eminent  domain  contained  in  the  existing  State  Constitutions: 
Private  property  shall  not  be  taken  or  applied  for  public  use  unless  just  compen- 
sation be  made  therefor;  nor  shall  private  property  be  taken  for  private  use,  or  for 
the  use  of  corporations  other  than  municipal,  without  the  consent  of  the  owner : 
Provided  however,  that  laws  may  be  made  securing  to  persons  or  corporations  the 
right  of  way  over  the  lands  of  either  persons  or  corporations,  and,  for  works  cf  in- 
ternal improvement,  the  right  to  establish  depots,  stations,  and  turnouts,  but  just 
compensation  shall  in  all  cases  be  first  made  to  the  owner. — Alabama,  i,  25.    No  right 
of  way  shall  be  appropriated  to  the  use  of  any  corporation  until  full  compensation 
therefor  be  first  made  in  money  or  secured  by  a  deposit  of  money  to  the  owner,  irre- 
spective of'  any  benefit  from  any  improvement  proposed  by  such  corporation,  which 
compensation  shall  be  ascertained  by  a  jury  of  twelve  men  in  a  court  of  record  as 
shall  be  prescribed  by  law. — INd.  xiii,  5.   Private  property  shall  not  be  taken  for 
public  use  without  just  compensation. — Arkansas,  i,  15  ;  Rhode  Island,  i,  16.    [Same] 
nor  unless  the  public  exigencies  require  it. — Maine,  i,  21.     [Same]  first  secured  or 
paid. — Minnesota,  i,  13.     Nor  shall  private  property  be  taken  for  public  use  without 
just  compensation. —  California,  i,  8;  Florida,~Dec.  of  Rights,  9  ;  New  York,  i,  6.    The 
property  of  no  person  shall  be  taken  for  public  use,  without  just  compensation  there- 
for.—  Connecticut,  i,  11;  Michigan,  xviii,  14;  Nebraska,  i,  13;   Wisconsin,  i,  J3.     Nor 
shall  any  man's  property  be  taken  or  applied  to  public  use  without  the  consent  of 
his  representatives,  and  without  compensation  being  made — Delaware,  i,  8.     [Same] 
and  without  just  compensation  being  previously  made  to  him. — Kentucky,  xiii,  14. 
[Same  as  last  except  "previously"  is  omitted.] — Ptnnsyhania,  ix,  10.     Private  ways 
may  be  granted  upon  just  compensation  being  paid  by  the  applicant. —  Georgia,  i,  20. 
Private  property  shall  not  be  taken  or  damaged  for  public  use  without  just  compen- 
sation.    Such  compensation,  when  not  made  by  the  State,  shall  be  ascertained  by  a 
jury,  as  shall  be  prescribed  by  law.  The  fee  of  land  taken  for  railroad  tracks  without 
consent  of  the  owners  thereof,  shall  remain  in  such  owners,  subject  to  the  use  for 
which  it  is  taken. — Illinois,  ii,  13.     The  exercise  of  the  power  and  the  right  of  emi- 
nent domain  shall  never  be  so  construed  as  to  prevent  the  taking,  by  the  General 
Assembly,  of  the  property  and  franchises  of  incorporated  companies  already  organized, 
.  and  subjecting  them  to  *he  public  necessity  the  same  as  individuals.      The  right  of 
•   trial  by  jury  shall  be  held  inviolate  in  all  trials  of  claims  for  compensation,  when,  in 


GUARANTY   OF   PRIVATE   PROPERTY.  421 

Having  thus  given  the  leading  provisions  of  the  State  Con. 
stitutions  on  the  subject,  I  now  proceed  to  consider  first,  the 

the  exercise  of  the  said  right  of  eminent  domain,  any  incorporated  company  shall  be 
interested  either  for  or  against  the  exercise  of  said  right. — Ibid,  xi,  14.  No  man's 
particular  services  shall  be  demanded  without  just  compensation  ;  no  man's  property 
shall  be  taken  by  law  without  just  compensation,  nor,  except  in  case  of  the  State, 
without  such  compensation  first  assessed  and  tendered. — Indiana,  i,  21.  Private 
property  shall  not  be  taken  for  public  use  without  just  compensation  first  being  made 
or  secured,  to  be  paid  to  the  owner  thereof  as  soon  as  the  damages  shall  be  assessed 
by  the  jury,  who  shall  not  take  into  consideration  any  advantages  that  may  result  to 
said  owner  on  account  of  the  improvement  for  which  it  is  taken. — Iowa,  i,  18.  No 
right  of  way  shall  be  appropriated  to  the  use  of  any  corporation  until  full  compensa- 
tion therefor  be  first  made  in  money,  or  secured  by  a  deposit  of  money,  to  the  owner, 
irrespective  of  any  benefit  from  any  improvement  proposed  by  such  corporation. — 
Kansas,  xii,4.  Nor  shall  vested  rights  be  divested  unless  for  purposes  of  public 
utility  and  for  adequate  compensation  made.— Louisiana,  vi,  110.  The  General  As- 
sembly shall  enact  no  law  authorizing  private  property  to  be  taken  for  public  use 
without  just  compensation,  as  agreed  upon  between  the  parties,  or  awarded  by  a 
jury,  being  first  paid  or  tendered  to  the  party  entitled  to  such  compensation. — Mary- 
land, iii,  40.  No  part  of  the  property  of  any  individual  can  with  justice  be  taken 
from  him  or  applied  to  public  uses  without  his  own  consent,  or  that  of  the  repre- 
sentative body  of  the  people.  And  whenever  the  public  exigencies  require  that  the 
property  of  any  individual  should  be  appropriated  to  public  uses,  he  shall  receive  a 
reasonable  compensation  therefor. — Massachusetts,  pt.  i,  10.  The  property  of  no  per- 
son shall  be  taken  by  any  corporation  for  public  use  without  compensation  being 
first  made  or  secured  in  such  manner  as  may  be  prescribed  by  law. — Michigan,  xv,  9. 
Private  property  shall  not  be  taken  for  public  improvements  in  cities  and  villages 
without  the  consent  of  the  owner,  unless  the  compensation  therefor  shall  first  be 
determined  by  a  jury  of  freeholders,  and  actually  paid  or  secured  in  the  manner  pro- 
vided by  law. — Ibid,  xv,  15.  When  private  property  is  taken  for  the  use  or  benefit 
of  the  public,  the  necessity  for  using  such  property,  and  the  just  compensation  to  be 
made  therefor,  except  when  to  be  made  by  the  State,  shall  be  ascertained  by  a  jury 
of  twelve  freeholders,  residing  in  the  vicinity  of  such  property,  or  by  not  less  than 
three  commissioners  appointed  by  a  court  of  record,  as  shall  be  prescribed  by  law  : 
Provided  the  foregoing  provisions  shall  in  no  case  be  construed  to  apply  to  the  action 
of  commissioners  of  the  highways  in  the  official  discharge  of  their  duties  as  highway 
commissioners. — Ibid,  xviii,  2.  Private  roads  may  be  opened  in  the  manner  to  be 
prescribed  by  law ;  but  in  every  case  the  necessity  of  the  road  and  the  amount  of  all 
damages  to  be  sustained  by  the  opening  thereof  shall  be  first  determined  by  a  jury 
of  freeholders ;  and  such  amount,  together  with  the  expenses  of  the  proceedings, 
shall  be  paid  by  the  person  or  persons  to  be  benefited. — Ibid,  xviii,  14.  Lands  may 
be  taken  for  public  way  for  the  purpose  of  granting  to  i,ny  corporation  the  franchise 
of  .way  for  public  use.  In  all  cases,  however,  a  fair  and  equitable  compensation  shall 
be  paid  for  such  land  and  the  damages  arising  from  the  taking  of  the  same. — Minne- 
sota, x,  4.  Private  property  shall  not  be  taken  for  public  use  except  upon  due  compen- 
sation first  being  made  to  the  owner  or  owners  thereof  in  a  manner  to  be  provided  by 
law. — Mississippi,  i,  10.  No  private  property  ought  to  be  taken  or  applied  to  public 
use  without  just  compensation. — Missouri,  i,  16.  Nor  shall  private  property  be  taken 


422  GUARANTY  OF   PRIVATE   PROPERTY. 

precise  nature  of  the  power  of  the  State  over  private  property, 
and  the  precise  extent  of  the  constitutional  limitation.  The 

for  public  use  without  just  compensation  having  been  first  made  or  secured,  except 
in  cases  of  war,  riot,  fire,  or  great  public  peril,  in  which  cases  compensation  shall  be 
afterward  made. — Nevada,  i,  8.  But  no  part  of  a  man's  property  shall  be  taken  from 
him  or  applied  to  public  uses  without  his  own  consent  or  that  of  the  representative 
body  of  the  people. — New  Hampshire,  pt.  i,  art.  12.  Private  property  shall  not  be 
taken  for  public  use  without  just  compensation:  but  land  may  be  taken  for  public 
highways  as  heretofore  until  the  Legislature  shall  direct  compensation  to  be  made. — 
Ntw  Jersey,  i,  16.  Individuals  or  private  corporations  shall  not  be  authorized  to 
take  private  property  for  public  use  without  just  compensation  first  made  to  the 
owners. — I 'bid.  iv,  7,  9.  [Same  as  xviii,  2  and  14  of  Michigan.] — New  York,  i,  7. 
Private  property  shall  ever  be  held  inviolate,  but  subservient  to  the  public  welfare. 
When  taken  in  time  of  war  or  other  public  exigency  imperatively  requiring  its  im- 
mediate seizure,  or  for  the  purpose  of  making  or  repairing  roads  which  shall  be  open 
to  the  public  without  charge,  a  compensation  shall  be  made  to  th  3  owner  in  money ; 
and  in  all  other  cases  where  private  property  shall  be  taken  for  public  use,  a  com- 
pensation therefor  shall  be  first  made  in  money,  or  first  secured  by  a  deposit  of  money ; 
and  such  compensation  shall  be  assessed  by  a  jury  without  deduction  for  benefits  to 
any  property  of  the  owner. —  Ohio,  i,  19.  Private  property  shall  not  be  taken  for 
public  use,  nor  the  particular  services  of  any  man  be  demanded,  without  just  com- 
pensation, nor,  except  in  the  case  of  the  State,  without  such  compensation  first  assessed 
and  *endered. —  Oregon,  i,  19.  The  Legislature  shall  not  invest  any  corporate  body 
or  individual  with  the  privilege  of  taking  private  property  for  public  use,  without 
requiring  such  corporation  or  individual  to  make  compensation  to  the  owners  of  said 
property,  or  give  adequate  security  therefor,  before  such  property  shall  be  taken. — 
Pennsylvania,  vii,  4.  Private  property  shall  not  be  taken  or  applied  for  public  use 
or  for  the  use  of  corporations,  or  for  private  use,  without  the  consent  of  the  owner, 
or  a  just  compensation  being  made  therefor :  Provided,  etc.  [same  as  proviso  in  Ala- 
bama].— South  Carolina,  i,  23.  No  man's  particular  services  shall  be  demanded,  or 
property  taken  or  applied  to  public  use,  without  the  consent  of  his  representatives, 
or  without  just  compensation  being  made  therefor. — Tennessee,  i,  21.  No  per- 
son's property  shall  be  taken  or  applied  to  public  use,  without  just  compensation 
being  made,  unless  by  the  consent  of  such  person. —  Texas,  i,  14.  Private  property 
ought  to  be  subservient  to  public  uses  when  necessity  requires  it;  nevertheless  when- 
ever any  person's  property  is  taken  for  the  use  of  the  public  the  owner  ought  to  receive 
an  equivalent  in  money. —  Vermont,  pt.  i,  2.  But  no  part  of  any  person's  property 
can  be  justly  taken  from  him  or  applied  to  public  uses,  without  his  own  consent  or 
that  of  the  representative  body  of  the  freemen. — Hid.  pt.  i,  9.  The  General  Assembly 
shall  not  pass  any  law  whereby  private  property  shall  be  taken  for  public  uses  with- 
out just  compensation. —  Virginia,  v,  14.  No  municipal  corporation  shall  take  private 
property  for  public  use  against  the  consent  of  the  owner,  without  the  necessity 
thereof  being  first  established  by  the  verdict  of  a  jury. —  Wisconsin,  xi,  2.  Private 
property  shall  not  be  taken  or  damaged  for  public  use  without  just  compensation ; 
nor  shall  the  same  be  taken  by  any  company  incorporated  for  the  purposes  of  inter- 
nal improvement  until  just  compensation  shall  have  been  paid  or  secured  to  be  paid 
to  the  owner;  and  when  private  property  shall  be  taken  or  damaged  for  public  use, 
or  for  the  use  of  such  corporations,  the  compensation  to  the  owner  shall  be  ascer- 


EMINENT  DOMAIN.  423 

language  of  the  clauses  above  cited  is  very  broad  and  sweeping, 
and  a  hasty  consideration  is  sufficient  to  satisfy  us  that  the 
words  cannot  be  taken  in  a  strict  or  literal  sense.  It  may  be 
here  remarked  at  the  outset,  that  this  clause  furnishes  a  good 
illustration  of  the  impossibility  of  construing  constitutional 
provisions  in  a  spirit  of  literal  strictness.  When  a  tax  is  levied, 
"private  property"  is  clearly  taken  for  public  use,  and  taken 
without  "  compensation ; "  and  so  in  other  cases  which  will 
present  themselves  in  the  examination  of  the  subject.  If,  there- 
fore, the  clause  was  rigidly  interpreted,  it  would  at  once  arrest 
the  operations  of  any  government  to  which  it  was  applied. 
Such,  however,  is  not  its  construction.  The  restriction  on  tak. 
ing  private  property  without  making  compensation,  is  confined 
to  only  one  branch  of  the  public  authority  over  private  rights 
of  property,  and  does  not  apply  to  the  power  of  taxation  or  to 
the  general  police  powers  of  the  Legislature.  These  legislative 
powers  are  not  limited  by  it,  and  there  are  other  less  important 
exceptions  which  we  shall  be  obliged  to  notice. 

We  have,  therefore,  to  keep  as  clearly  as  we  can  in  view  the, 
exact  nature  of  the  powers  of  the  State  over  property.  They 
embrace  not  only  the  power  of  taxation,  as  well  as  general  con- 
trol for  the  purposes  of  police,  public  health,  and  public  morals, 
but  also  the  power  of  taking  private  property  when  any  public 
interest  of  whatever  degree  calls  for  it ;  and  of  this  demand  or 
exigency,  the  Legislature  or  sovereign  power  of  the  State  being 
the  sole  and  absolute  judge,  whether  in  part  or  the  whole, 
whether  required  for  the  ordinary  expenses  of  government  or 
for  rare  and  extraordinary  emergencies,  whether  absolutely  re- 
quired for  the  public  safety  or  called  for  by  mere  considerations 
of  convenience,  the  subjection  of  private  property  to  the  State 
or  Government  is  complete  and  universal.  This  absolute  power 
of  the  State  over  the  property  of  its  citizens  or  subjects,  seems 

tained  in  such  manner  as  may  be  prescribed  by  general  law :  Provided  that  when 
required  by  either  of  the  parties  such  compensation  suall  be  ascertained  by  an  im- 
partial jury  of  twelve  freeholders. —  West  Virginia,  iii,  9.  The  exercise  of  the  power 
and  the  right  of  eminent  domain  shall  never  be  so  construed  or  abridged  as  to  pre- 
vent the  taking  by  the  Legislature  of  the  property  and  franchises  of  incorporated 
companies  already  organized,  and  subjecting  them  to  the  public  use  the  same  as  of 
individuals. — Ibid,  xi,  12. 


424  EMINENT   DOMAIN. 

to  be  conceded  by  all  writers,  and  to  be  declared  under  all  sys- 
tems of  government.  Differences  exist  as  to  the  right  to  com- 
pensation ;  but  all  agree  that  when  the  Government  demands, 
private  rights  must  give  way,  that  the  property  of  the  individ- 
ual must  be  surrended  to  the  general  welfare.  The  power 
which  commands  and  enforces  these  concessions,  seems  to  de- 
rive its  name  from  a  French  original,  and  is  known  by  the  term 

EMINENT   DOMAIN.* 

The  abstract  power  is,  as  I  have  said,  universally  recognized. 
As  to  the  limitations  on  the  power,  different  systems  recognize 
very  different  rules.  In  France,  the  right  to  compensation  is 
universally  and  peremptorily  declared.f  In  England,  though 
in  no  country  is  a  wiser  and  more  scrupulous  respect  paid  to 
private  rights,  still  their  doctrine  of  parliamentary  supremacy 
recognizes  no  absolute  right  to  remuneration.  "  If  the  Legisla- 
ture thought  it  necessary,"  said  Lord  Kenyon,  speaking  of  turn- 
pike acts,  paving  acts,  and  navigation  acts,  "  as  they  do  in  many 
cases,  they  would  enable  the  commissioners  to  award  satisfac- 
tion to  the  individuals  who  happen  to  suffer.  But  if  there  be 
no  such  power  the  parties  are  without  remedy,  provided  the 
commissioners  do  not  exceed  their  jurisdiction."  £ 

In  this  country,  we  have  thought  it  wise  to  put  restraints 
on  the  exercise  of  this  power,  and  these  restraints  are  expressed 

*  Vattel  says,  sec.   1,  c.  xx,   §  244,  "  Le  manner  directed  by  the  Constitution  nnd  laws 

droit  qul  apparticnt  a  la  societe  ou  au  snuverain,  of  the  State,  whenever  the  public  interests  re- 

de  d''KpoKtr  en  can  de  neccessite  et  pour  le  suhit  quire  it.     The  only  restriction  upon  this  pow- 

public  de  tout  bien  renfermedans  Fetat,  s'appelle  er  is,  that  the  properly  shall  not  be  taken  fur 

I)onv>iiie  Eminent.     Ce   droit  fait  par  tie  du  the  public  use  without  just  compensation  to 

Murerain  pouvoir."      See   Domat   as  to   the  the  owner,  and  in  the  mode  prescribed  by 

right  to  take  private  property,  Des  Loix  Civ-  law.     The  right  of  emineut  domain  does  not, 

iles,  lib.  i,  tit.  ii;  sect,  xiii,  432,  et  scq.     He  however,  imply  a  righl  iu  the  sovereign  pow- 

cites  a  curious  old  ordinance  of  1803,  in  the  er  to  take  the  property  of  one  citizen  and 

time  of  Philippe  le  Bel ;  Et  pnssessores  ill-arum  transfer  it  to  another,  even  for  a  full  compen- 

possessionum   ad  eas  demitteiidum  justo  prelio  sation,  where  the  public  interests  will  be   in 

fonificllantur.  no  way  promoted  by  such   transfer."     Beek- 

"  All   separate  interests  of  individuals  in  man  v.  Saratoga  and   Schenectady  R.  R.  Co. 

property  are  held  by  the  Government  under  3  Paige,  73.     See  also,  as  to  eminent  domain, 

the   tacit  agreement  or  implied  reservation  Varick  v.  Smith,  5  Paige,  159. 
that  the  property  may  be  taken  for  public  use  f  The  Cede  Napoleon  (book  ii,  tit.  ii,  545), 

upon   paying   a   fair   compensation   therefor,  says,  "  Ko  one  can  be  compelled  to  give  up 

whenever  the  public  interests  or  necessities  his  property  except  for  the  public  good,  and 

require  that  it  should  be  so  taken.     Notwith-  for  a  just  and  previous  indemnity."     See  also 

standing  the  grant  to  individuals,  the  eminent  Kent's  Comrn.  ii,  339,  note. 
domain,  the  highest  and  most  exact  idea  of          ^  Governor,  &c.  of  Cast  Plate  Manufactur- 

property,  remains  in  the  Government  or  in  ers  v.  Meredith,  4  Term.  795;  action  against 

the  Dggregate  body  of  the  people  in  their  sov-  defendants  as  commissioners  under  a  paving 

ereign  capacity;  and  tbey  have  a  ri«-ht  to  act;  and  held  that  they  were  not  liable, 
resume  the  possession  of  the  property  in  the 


TAXATION.  425 

in  the  constitutional  clauses  which  I  have  above  cited.  But,  as 
I  have  said,  the  constitutional  limitation  which  requires  com- 
pensation for  the  sacrifice  of  private  property,  does  not  apply  to 
every  branch  of  the  power  of  eminent  domain.  It  is  only  in- 
tended to  operate  on  the  exercise  of  the  legislative  power  where 
property  is  taken  for  objects  of  general  necessity  or  convenience, 
such  as  roads,  canals,  public  buildings,  public  works  of  all  kinds, 
and  does  not  attach  to  the  power  of  taxation,  or  the  general  au- 
thority over  property  with  reference  to  public  health  or  public 
morals.  As  we  shall  see  hereafter,  certain  special  constitutional 
limitations  have  been  imposed  by  some  of  the  States  on  the 
power  of  taxation;  but  neither  that  nor  the  general  police 
powers  are  affected  by  the  clauses  in  regard  to  the  taking  of 
private  property. 

In  regard  to  taxation,  it  is  well  settled  that  neither  the  pro- 
vision that  private  property  shall  not  be  taken  for  public  use 
without  just  compensation,  nor  the  other  clause,  which  we  shall 
hereafter  examine,  declaring  that  no  person  shall  be  deprived  of 
his  property  without  due  process  of  law,  limits  the  legislative 
power.  Therefore,  an  act  of  the  Legislature  directing  a  certain 
tax  to  be  assessed  upon  a  particular  town,  is  constitutional  and 
valid.*  So,  too,  in  Pennsylvania,  in  a  case  already  cited  (ante, 
p.  158),  it  has  been  decided  that,  no  matter  how  unequally  or 
oppressively  the  power  of  taxation  be  exercised,  the  courts  have 
no  power  to  interfere,  f  (a) 

*  People  v.  Mayor  of  Brooklyn,  4  Corns.  615;  Town  of  Guilford  v.  Supervisors  of 
423;  Town  of  Guilford  v.  Cornell,  18  Barb.  Chenango  Co.  3  Kernan,  147;  ante,  p.  353. 

f  Kirby  v.  Shaw,  19  Penn.  (7  Harris)  K.258. 

(a)  Taxation  in  General;  Definition. — "Taxation,  in  the  veiy  meaning  of  the  term, 
implies  the  raising  of  money  for  public  uses,  and  excludes  the  raising  of  it  for  private 
objects  and  purposes,"  says  Appleton,  C.  J.,  in  the  recent  case  of  Allen  v.  Jay, 
60  Me.  124,  127,  and  no  doubt  all  courts  -would  concede  the  correctness  of  this 
general  proposition.  The  conflict  in  judicial  decision  as  to  the  limits  of  the  legis- 
lative power  implied  in  the  word  "  taxation,"  in  the  absence  of  special  restrictions, 
arises  rather  over  the  question,  What  objects  and  purposes  are  private,  and,  there- 
fore, beyond  the  scope  of  taxation  ? 

The  Legislature  cannot  tax  A.  in  order  to  give  the  money  to  B.  Thus,  a  so-called 
tax  on  agencies  of  foreign  insurance  companies  doing  business  in  the  State,  made 
payable  to  a  private  corporation  for  the  relief  of  disabled  firemen,  has  been  held  in- 
valid, and  the  court  refused  to  enforce  a  bond  given  under  requirement  of  law  for  its 
payment.  Philadelphia  Assn.  v.  Wood,  39  Penn.  St.  73 ;  but  see  Fire  Department 


426  TAXATION. 

Under  this  head  of  taxation  is  now  generally  understood  to 
be  embraced  the  mode  usually  practiced  in  this  country  of  as- 

v.  Helfenstein,  16  Wise.  136.  A  law  authorizing  taxation  to  repay  individuals  money 
paid  by  them  for  procuring  substitutes  for  themselves,  would  be  invalid,  as  a  taxa- 
tion for  private  purposes.  Freeland  v.  Hastings,  10  Allen,  570 ;  Thompson  v.  Pitts- 
ton,  59  Me.  545. 

But  as  the  Legislature,  in  the  absence  of  any  special  constitutional  restrictions, 
can  raise  money  by  taxation  without  specifying  the  object  of  the  tax,  and  appropri- 
ate it  when  raised  at  its  pleasure,  the  range  of  judicial  interference  is  very  limited. 
In  the  absence  of  special  limitations  upon  the  Legislature,  the  judicial  question  in- 
volving the  validity  of  taxation  has  generally  arisen  as  to  local  taxes  impossd  for  a 
particular  purpose,  or  as  to  municipal  engagements — e.  g..  subscriptions — necessarily 
involving  taxation  for  their  liquidation. 

It  seems  but  a  corollary  of  the  proposition  that  the  Legislature  cannot  lay  or  au- 
thorize the  laying  of  a  tax  for  private  purposes,  that  it  cannot  tax  or  authorize  the 
taxation  of  one  locality  for  the  public  uses  of  another  locality.  Thus,  it  has  been 
held  that  a  municipality  cannot  be  authorized  to  tax  land  outside  its  limits  for  its 
own  municipal  purposes.  Wells  v.  Weston,  22  Mo.  384.  And  even  a  technical  an- 
nexation to  a  city  of  outlying  agricultural  tracts  has  been  held  insufficient  to  justify 
taxation  for  the  city  purposes.  Covington  v.  Southgate,  15  B.  Mon.  491 ;  Maltus  v. 
Shields,  2  Mete.  (Ky.)  553 ;  Morford  v.  Unger,  8  Clarke  (la.)  82 ;  Langworthy  v.  Du- 
buque,  16  Iowa,  271;  but  see  Weeks  v.  Milwaukee,  10  Wise.  242;  Bull  v.  Conroe,  13 
Wise.  233 ;  Abegust  v.  Louisville,  2  Bush  (Ky.)  271 ;  People  v.  Hill,  7  Cal.  97  ;  Powers 
v.  Wood  Co.  8  Ohio,  N.  S.  285. 

Local  Assessments. — The  better  opinion  seems  to  be  that,  whether  expressly  given 
or  resulting  from  the  general  grant  of  legislative  power,  the  power  to  tax  implies  the 
power  to  apportion,  and  that  there  is  no  limitation  inherent  in  the  nature  of  a  "  tax  " 
which,  in  the  absence  of  peculiar  constitutional  restraint,  prevents  its  imposition  on 
a  particular  locality  in  any  manner  the  Legislature  may  see  fit.  People  v.  Brooklyn, 
4  1ST.  Y.  419;  Guilford  v.  Chenango  Co.  13  K  Y.  143;  Litchfieldv.  Venion,  41  N.  Y. 
123;  Alcorn  v.  Hamer,  38  Miss.  652;  Philadelphia  v.  Field,  58  Penn.  St.  320;  Nichols 
v.  Bridgeport,  23  Conn.  189;  State  v.  Newark,  6  Vroom.  168;  per  contra,  see  State  v. 
City  Council,  12  Rich.  L.  702;  see,  also,  Lexington  v.  McQuillan,  9  Dana,  513.  Al- 
though the  Constitution  of  New  York  speaks  of  "assessments"  as  distinct  from 
"•  taxes,"  the  cases  in  that  State  above  cited  do  not  at  all  rest  upon  that  distinction, 
but  place  the  power  to  lay  local  assessments  wholly  upon  the  general  power  of  taxa- 
tion. The  whole  doctrine  is  discussed  at  large  and  with  great  ability  in  the  first  of 
those  cases.  People  v.  Brooklyn. 

When  the  Constitution  recognizes  the  power  of  laying  "  assessments  "  as  distinct 
from  "taxation,"  limitations  upon  the  taxing  power,  as,  e.  g.,  that  taxes  shall  be  uni- 
form, and  in  proportion  to  the  value  of  the  property  taxed,  and  the  like,  have  been 
held  not  to  apply  to  assessments.  Hill  v.  Higdon,  5  Ohio,  N.  S.  243 ;  Burnett  v. 
Sacramento,  12  Cal.  76;  Emery  v.  San  Francisco  Gas  Co.  28  Cal.  846;  Piper's  Ap- 
peal, 32  Cal.  530 ;  Lumsden  v.  Cross,  10  Wise.  282  ;  Soens  v.  Racine,  10  Wise.  271 ; 
Bond  v.  Kenosha,  17  Wise.  284 ;  Weeks  v.  Milwaukee,  10  Wise.  242  ;  Lafayette  v. 
Jenners,  10  Ind.  70;  Goodrich  v.  Winchester,  &c.  Co.  26  Ind.  119;  Palmer  v.  Stumph, 
29  Ind.  329 ;  Law  v.  Madison,  &c.  Co.  30  Ind.  77 ;  Paine  v.  Spratley,  5  Kans.  525. 
The  same  is  held  when  the  Constitution  provides  for  "  duties "  as  well  as  for 


TAXATION.  427 

sessing  the  expense  of  local  improvements ;  and  thus  property 
is  daily  taken  for  opening  streets  and  other  objects  of  a  similar 

"  taxfes."  King  v.  Portland,  2  Oregon,  146  ;  see  People  v.  Whyler,  41  Cal.  351,  which 
holds  that  a  charge  on  the  property  of  a  district  to  pay  for  levees  is  a  tax,  and  not  a 
local  assessment. 

The  same  is  held  even  where  there  is  no  recognition  in  the  Constitution  of  the 
power  to  lay  local,  assessments  as  distinct  from  the  power  to  tax.  Yeatman  v.  Cran- 
dall,  11  La.  Ann.  220;  Wallace  v.  Shelton,  14  La.  Ann.  503;  In  Matter  of  New  Or- 
leans, 20  La.  Ann.  497  ;  Egyptian  Levee  Co.  v.  Hardin,  27  Mo.  495 ;  Columbia,  &c. 
Co.  v.  Muir,  39  Mo.  53;  McGehee  v.  Mathis,  21  Ark.  40;  St.  Joseph  v.  O'Donoghue, 
31  Mo.  345  ;  Howard  v.  First  Church,  18  Md.  451 ;  Bishop  v.  Marks,  15  La.  Ann. 
147;  Richardson  v.  Morgan,  16  La.  Ann.  429  (affirming  Yeatman  v.  Crandall,  ubi 
sup.} ;  Goodrich  v.  Winchester,  &c.  Co.  26  Ind.  119 ;  Warren  v.  Henley,  31  Iowa,  31 ; 
Bliss  v.  Kraus,  16  Ohio,  N.  S.  54  (making  owner  of  low  ground  bear  the  expense  of 
raising  it) ;  Chambers  v.  Satterlee,  40  Cal.  497. 

As  a  particular  tract  of  land  may  be  assessed,  so  it  would  seem  may  a  particular 
class  of  personal  property  that  is  benefited — e.  g.,  shipping,  for  improvement  of  a 
harbor.  See  President,  &c.  v.  State,  45  Ala.  399. 

Such  local  assessments  may  be  made  according  to  the  actual  benefit  to  each  lot. 
In  the  Matter  of  Dorrance  St.  4  R.  I.  230 ;  or  according  to  some  arbitrary  standard  of 
benefit,  as,  for  instance,  frontage.  Ernst  v.  Kunkle,  5  Ohio,  K  S.  520 ;  Northern,  &c. 
R.  R.  v.  Connelly,  10  Ohio,  N.  S.  159 ;  Emery  v.  San  Francisco  Gas  Co.  28  Cal. 
346;  Allen  v.  Drew,  44  Vt.  174;  Wray  v.  Pittsburg,  46  Penn.  St.  365;  Stroud  v. 
Philadelphia,  61  Penn.  St.  255;  St.  Joseph  v.  Anthony,  30  Mo.  537;  but  se.e  In 
re  Washington  Avenue,  69  Penn.  St.  352,  limiting  the  rule  to  city  lota.  Even,  it 
seems,  the  entire  expense  of  the  improvement  in  front  of  each  estate  may  be  assessed 
upon  that  estate.  Weeks  v.  Milwaukee,  10  Wise.  242;  Palmyra  v.  Morton,  25  Mo. 
593 ;  but  see  Woodbridge  v.  Detroit,  8  Mich.  274 ;  Motz  v.  Detroit,  18  Mich.  495 ; 
see,  also,  Hart  v.  Gaven,  12  Cal.  476. 

When  the  assessment  takes  this  form,  it  is  sometimes  referred  to  the  police  power. 
See  Palmyra  v.  Morton,  uli  sup. 

Or  the  assessment  may  be  laid  according  to  the  value  of  the  lots.  Barnes  v. 
Atchison,  2  Kans.  454 ;  Malchus  v.  District  of  Highlands,  4  Bush  (Ky.)  547 ;  or  by 
the  acre.  Williams  v.  Cammack,  27  Miss.  209  ;  Egyptian  Levee  Co.  v.  Hardin,  27 
Mo.  495 ;  Wallace  v.  Shelton,  14  La.  Ann.  503. 

Where  the  limitation  of  u  uniformity  "  has  been  held  applicable  to  assessments,  it 
has  been  construed  as  requiring  uniformity  according  to  the  subject-matter — not  a 
theoretical,  but  a  practical,  uniformity ;  and  local  assessments  have  been  upheld  as 
being  as  equal  a  distribution  of  the  burden  as  the  circumstances  of  the  case  will  ad- 
mit. But  such  assessments,  to  be  uniform  in  this  sense,  must  be  according  to  the 
benefit,  and  not  in  excess  of  the  benefit,  and,  therefore,  an  assessment  by  frontage  is 
held  not  to  be  "  equal "  nor  "  uniform."  Chicago  v.  Lamed,  34  111.  203 ;  Ottawa  v. 
Spencer,  40  111.  211 ;  Bedard  v.  Hall,  44  111.  91 ;  Creote  v.  Chicago,  56  111.  422  ;  and 
such  assessments  must  include  all  benefited  in  the  ratio  of  the  benefit.  Chicago  v. 
Baer,  41  HI.  306 ;  but,  per  contra,  see  Stinson  v.  Smith,  8  Minn.  366,  where  an  as- 
sessment, though  laid  according  to  benefit,  was  held  void,  under  a  constitutional  re- 
quirement that  all  property  on  which  taxes  are  to  be  levied  shall  have  a  cash  valua- 
tion and  be  equal  and  uniform  throughout  the  State. 


428  TAXATION. 

nature,  often  without   any  pecuniary  compensation,   and   the 
burden  thrown  on  a  particular  and  small  locality.     In  opening 

In  Massachusetts,  when  the  power  is  traced  to  the  power  of  imposing  "  propor- 
tional and  reasonable  assessments,  rates,  and  taxes,"  and  of  passing  "  wholesome  and 
reasonable  laws,"  assessments  according  to  the  benefit  have  been  held  valid.  Dorgan 
v.  Boston,  12  Allen,  223;  Jones  v.  Boston,  104  Mass.  461. 

Some  cases  have  reconciled  local  assessments  with  the  express  or  implied  require- 
ment of  uniformity  by  considering  each  locality  assessed  a  separate  tax  district. 
Lexington  v.  McQuillan,  9  Dana,  513. 

Local  assessments  do  not  conflict  with  the  general  provisions  for  the  security  of 
the  citizen  contained  in  most  Constitutions,  as,  for  example,  "the  burdens  of  the 
State  ought  to  be  fairly  distributed  among  its  citizens."  In  the  Matter  of  Dorrance 
St.  4  R.  I.  230 ;  or  "  no  person  shall  be  deprived  of  life,  liberty  or  property  without 
due  process  of  law."  People  v.  Brooklyn,  4  N.  Y.  419  ;  see,  also,  Williams  v.  Cam- 
mack,  27  Miss.  209 ;  per  contra,  see  State  v.  City  Council,  12  Rich.  Law,  702.  Local 
assessments  in  proportion  to  the  benefit  upon  the  property  of  a  corporation  are  not 
contrary  to  a  provision  in  its  charter  exempting  it  from  all  taxes ;  otherwise,  if  the 
assessment  is  laid  upon  the  corporation  itself — not  upon  the  property  benefited — and 
is  not  required  to  be  laid  according  to  the  benefit.  State  v  Newark,  3  Dutch.  185. 

Where  a  Constitution  declared,  under  the  head  of  "  Finance  and  taxation,"  that 
'•the  Legislature  shall  provide  for  a  uniform  and  equal  rate  of  assessment  and  taxa- 
tion," and  under  the  head  of  ''Corporations,"  that  provision  shall  be  made  by  gen- 
eral law  for  the  organization  of  cities,  &c.,  and  their  power  of  taxation,  assessment, 
&c.,  shall  be  so  restricted  as  to  prevent  the  abuse  of  such  power  " — held,  the  "  assess- 
ment"  in  the  first  clause  meant  "listing"  and  '"valuation,"  and  did  not  refer  to 
assessments  for  local  improvements.  Hines  v.  Leavenworth,  3  Kans.  186.  Where 
the  Constitution  provides  that  the  Legislature  shall  impose  restrictions  upon  the 
abuse  of  the  power  of  local  assessment,  it  was  held  in  Kansas  that  if  any  restriction 
is  imposed,  the  Legislature  is  the  sole  judge  of  its  sufficiency.  Hines  v.  Leavenworth, 
3  Kans.  186 ;  and  in  Ohio,  under  the  same  provision,  the  court  will  not  treat  the 
assessment  invalid,  though  the  Legislature  entirely  neglect  to  impose  any  restrictions. 
Hill  v.  Higdon,  5  Ohio,  N.  S.  243 ;  Maloy  v.  Marietta,  11  Ohio,  N.  S.  636;  see,  also, 
Bank  of  Rome  v.  Rome,  18  N.  Y.  38 ;  Lumsden  v.  Cross,  10  Wise.  282.  A  provision 
in  a  city  charter  that  no  tax  shall  be  levied  beyond  what  may  be  needed  for  legiti- 
mate municipal  purposes,  without  the  previous  sanction  of  a  majority  of  the  voters, 
is  not  such  a  restriction  as  the  Constitution  requires.  Foster  v.  Kenosha,  12  Wise. 
616. 

Where  exemptions  from  taxation  were  prohibited  by  the  Constitution,  this  was 
held  to  apply  to  general  taxation  only,  and  not  to  prohibit  local  assessments  for  im- 
provement in  real  estate.  State  v.  Linn  Co.  Court,  44  Mo.  504.  Where  the  Consti- 
tution provided  for  uniform  and  equal  rate  of  assessment  and  taxation,  and  prohib- 
ited the  General  Assembly  from  passing  local  or  special  laws  for  the  assessment  and 
collection  of  taxes  for  State,  county,  township  or  road  purposes — held,  that  a  law 
authorizing  local  assessment  for  local  improvements,  e.  g.,  a  turnpike,  was  constitu- 
tional. Law  v.  M.  S.  &  G.  Turnpike  Co.  30  Ind.  77;  Ryker's  Ridge  Turnp.  Co.  v. 
Scott,  32  Ind.  37.  A  Constitution  contained  the  following :  "  The  corporate  authori- 
ties of  counties,  townships,  school  districts,  cities,  towns  and  villages,  may  be  vested 
with  power  to  assess  and  collect  taxes  for  corporate  purposes."  Under  this  provision, 


TAXATION.  .        429 

streets  and  making  other  similar  local  improvements  in  the 
United  States,  it  is  the  general  practice,  when  authorizing  the 

a  levee  and  drainage  company  cannot  be  authorized  to  impose  a  tax  to  defray  ex- 
penses of  the  improvement.  Harward  v.  St.  C.  &  M.  L.  &D.  Co.  51  111.  130  ;  Hessler 
v.  Drainage  Commrs.  53  111.  105.  Where  a  statute  as  to  assessment  for  a  local  im- 
provement was  manifestly  unjust — e.  g.,  when  it  authorized  a  particular  street  to  be 
paved  with  Nicholson  pavement  at  the  expense  of  the  abuttors,  without  their  consent, 
their  consent  being  necessary  to  pave  other  streets,  it  was  held  invalid.  Howell  v. 
Bristol,  8  Bush  (Ky.),  493. 

In  some  cases,  the  laying  of  local  assessments  is  treated  as  an  exercise  of  the  power 
of  eminent  domain.  See  Chicago  v.  Larned,  34  111.  203  ;  Peoria  v.  Kidder,  26  El. 
351.  Thus,  in  New  Jersey,  as  to  assessment  in  excess  of  the  benefit  received.  Tide 
Water  Co.  v.  Coster,  3  C.  E.  Green,  518.  But  this  view  is  rejected  in  the  vast  major- 
ity-of  the  cases.  That  the  Legislature  may  designate  the  tract  on  which  the  assess- 
ment for  local  improvement  shall  be  laid,  see  Miller  v.  Craig,  3  Stockton,  175.  The 
improvement  must  be  a  public  one,  and  abuttors  on  a  private  way  cannot  be  com- 
pelled to  pay  the  expense  of  grading  the  same,  though  it  is  open  to  public  travel. 
Morse  v.  Stocker,  1  Allen,  150. 

That,  in  addition  to  the  assessment  on  the  land,  there  may  be  a  personal  liability 
imposed,  see  Litchfield  v.  McComber,  42  Barb.  288 ;  St.  Louis  v.  Clemens,  36  Mo. 
467;  but  see  Creighton  v.  Manson,  27  Cal.  613;  Taylor  v.  Palmer,  31  Cal.  240  ;  Nee- 
nan  v.  Smith,  50  Mo.  525,  overruling  St.  Louis  v.  Clemens,  supra. 

What  Objects  and  Purposes  are  Public,  so  that  they  may  be  made  the  occasions  of 
Local  Taxation. — The  principle  of  local  taxation  for  local  improvement  being  thus 
admitted,  the  question  recurs,  What  is  an  improvement  constituting  such  a  benefit  to 
the  public  of  the  particular  locality,  that  a  tax  may  be  imposed  ?  As  before  re- 
marked, the  conflict  in  the  judicial  decisions  and  the  theoretical  discussions,  arises 
from  the  attempt  to  answer  this  question.  The  cases  frequently  turn  upon  the  lan- 
guage of  express  and  special  constitutional  provisions  by  which  the  power  of  taxa- 
tion is  delegated  or  limited ;  but  with  such  special  provisions  we  are  not  concerned 
at  present.  The  question  is,  however,  discussed  and  answered  upon  general  prin- 
ciples, in  the  absence  of  special  express  constitutional  directions  and  limitations. 
The  results  of  these  latter  discussions  and  decisions  are  now  given,  arranged  under 
various  heads  according  to  the  nature  of  the  subject-matter. 

Municipal  Aid  to  Railroads. — It  has  been  generally  held,  and  the  weight  of 
authority  is  overpowering,  that  statutes  allowing  municipalities  to  aid  (by  subscrib- 
ing for  stock,  or  issuing  bonds,  or  loaning  credit),  in  the  construction  of  railroads 
and  similar  improvements,  which,  by  terminating  in,  or  running  through  the  muni- 
cipality, or  by  being  links  in  lines  or  routes  of  transportation  that  do  thus  terminate  or 
run,  will,  as  it  is  supposed,  benefit  the  municipality,  are  constitutional  and  valid. 
Bank  of  Rome  v.  Rome,  18  N.  Y.  38  ;  Benson  v.  Mayor,  &c.  24  Barb.  248 ;  Clarke  v. 
Rochester,  24  Barb.  446 ;  Gould  v.  Venice,  29  Barb.  442 ;  People  v.  Henshaw,  61 
Barb.  409 ;  Starin  v.  Genoa,  23  N.  Y.  439  ;  Caldwell  v.  Justices,  4  Jones  Eq.  323 ; 
Hill  v.  Forsythe  Co.  67  N.  C.  367  ;  Gibbons  v.  Mobile  &c.  R.  R.  36  Ala.  410 ;  Augusta 
B'k  v.  Augusta,  49  Me.  507  ;  Burns  v.  Atchison,  2  Kans.  454  ;  Union  Pac.  Q.  R.  v. 
Davis  Co.  6  Kans.  256  ;  Comm'rs  of  Leavenworth  Co.  v.  Miller,  7  Kans.  479  ;  State 
v.  Nemaha  Co.  Ib.  542 ;  Morris  v.  Morris  Co.  2b.  576  ;  Cotton  v.  Leon  Co.  6  Flor. 
610  ;  Louisville  &c.  R.  R.  v.  Davidson  Co.  1  Sneecl  (Tenn.)  637;  Aurora  v.  West,  9 


430  TAXATION. 

work  to  be  done,  to  cause  the  expense,  which  includes  the  value 
of  the  property  taken,  to  be  assessed  exclusively  upon  the 

Ind.  74 ;  John  v.  Cincinnati  &c.  R.  R.  35  Ind.  539 ;  Maddox  v.  Graham,  2  Mete. 
(Ky.)  56;  Shelby  County  Ct.  v.  Cumberland  &c.  R.  R.  8  Bush,  209;  Pattison  v. 
Yuba,  13  Cal.  175 ;  Robinson  v.  Bidwell,  22  Cal.  379 ;  Stockton  &c.  R.  R.  v.  Stock- 
ton, 41  Cal.  147  ;  Clapp  v.  Cedar  Co.  5  Clarke  (la.)  15  ;  Stewart  v.  Polk  Co.  30  Iowa, 
9  ;  Piatt,  Supervisor,  &c.  v.  People,  29  111.  54 ;  Butler  v.  Dunham,  27  HI.  474  ;  Comm'rs 
v.  Nichols,  14  Ohio,  N.  S.  260 ;  St.  Joseph  &c.  R.  R.  v.  Buchannan  Co.  Court,  39  Mo. 
485;  State  v.  Linn  Co.  Ct.  44  Mo.  504;  San  Antonio  v.  Jones,  28  Tex.  19;  Phillips 
v.  Albany,  28  Wise.  340 ;  Davidson  v.  Ramsey  Co.  18  Minn.  482.  The  Supreme 
Court  of  the  United  States  has  assumed  in  a  series  of  cases  to  pass  upon  this  ques- 
tion and  to  construe  State  Constitutions,  and  has  fully  sustained  the  power  to  pass 
such  statutes,  see,  Thompson  v.  Lee  County,  3  Wall.  327  ;  Knox  Co.  v.  Aspinwall,  21 
How.  539  ;  Zabriskie  v.  Railroad  Co.  23 II.  381 ;  Amey  v.  Mayor,  24  II.  364 ;  Gelpcke 
v.  Dubuque,  1  Wall.  175 ;  Mercer  Co.  v.  llackett,  Ib.  83 ;  Meyer  v.  Muscatine,  II.  384. 

Subscription  by  a  town  to  stock  of  a  company  for  improving  river  navigation 
has  also  been  sustained.  Taylor  v.  Newbern,  2  Jones  Eq.  141.  But  it  seems  that 
the  Legislature  cannot  authorize  a  municipality  to  donate  its  aid  to  a  railroad. 
Sweet  v.  Hulbert,  51  Barb.  312;  Whiting  v.  Sheboygan  &c.  R.  R.  25  Wise.  167; 
Rogan  v.  Watertown,  30  Wise.  259 ;  but  the  contrary  was  held  in  Davidson  v.  Ram- 
sey Co.  18  Minn.  482,  and  see  Cummins  v.  Jefferson  County,  63  Barb.  287.  It  has 
been  held  that  the  Legislature  may  compel  a  county  to  subscribe  to  the  stock  of  a 
completed  road.  Napa  Valley  R.  R.  v.  Napa  Co.  30  Cal.  435.  The  Court  of  Ap- 
peals of  N.  y.  has  just  decided  in  a  very  carefully  considered  case,  in  which  all  the 
authorities,  State  and  national,  are  reviewed,  that  the  Legislature  cannot  compel  by 
a  mandatory  statute  a  municipality  to  subscribe  in  aid  of  a  railroad  against  its  con- 
sent. People  v.  Bacheller,  8  Albany  Law  Journal,  120 ;  53  N.  Y.  128. 

It  is  not  necessary  that  the  improvement  should  be  within  the  municipality 
making  the  assessment.  Pattison  v.  Yuba  Co.  13  Cal.  175;  Skinner's  Ex'or  v.  Hut- 
ton,  33  Mo.  244.  In  general  the  element  of  situation  and  benefit  must  combine  to 
make  aid  to  a  corporation  come  within  "  county  purposes."  Gotten  v.  Leon  Co.  6 
Flor.  610.  That  a  city  cannot  lay  an  assessment  as  for  an  improvement,  where  the 
improvement  consists  in  abating  a  nuisance  caused  by  the  city  itself,  see,  Weeks  v. 
.Milwaukee,  10  Wise.  242;  and  where  a  street  has  been  opened  and  paved,  so  that 
the  duty  of  repair  is  laid  upon  the  city,  it  seems  a  change  or  repairing  cannot  be 
treated  as  an  improvement  and  paid  for  by  local  assessment.  Hammett  v.  Philadel- 
phia. 65  Penn.  St.  146. 

The  courts  of  Iowa  have  held,  reversing  their  prior  decisions,  that  municipal  sub- 
scriptions to  railroads  could  not  be  authorized  by  the  Legislature.  Stokes  v.  Scott 
Co.  10  Iowa,  166 ;  State  v.  Wapello  Co.  13  11.  388  ;  Myers  v.  Johnson  Co.  14  11.  47  ; 
Smith  v.  Henry  Co.  15  Ib.  385 ;  Ten  Eyck  v.  Keokuk,  15  Ib.  486 ;  McClure  v.  Owen, 
26  11.  243 ;  Hansen  v.  Vernon,  27  Ib.  28.  But  the  most  recent  cases  in  that  State, 
following  the  decisions  of  the  U.  S.  Supreme  Court,  and  adopting  that  tribunal's 
construction  of  their  State  Constitution,  have  receded  from  this  position  and  affirmed 
the  validity  of  such  legislation.  Stewart  v.  Polk  Co.  30  Iowa,  9  ;  Bounifield  v.  Bid- 
well,  32  Ib.  149. 

In  Michigan  such  legislation  is  held  unconstitutional.  People  v.  Salem,  20  Mich. 
452;  Bay  City  v.  State  Treas'r,  23  Ib.  499. 


TAXATION.  431 

owners  of  real  estate  immediately  adjacent  to  the  projected  im- 
provement.    These  lands  are  adjudged  to  be  benefited  by  the 

In  Indiana  the  Constitution  prohibits  any  subscription  by  municipalities  to  rail- 
roads unless  paid  at  the  time,  but  subject  to  this  limitation  statutes  authorizing 
subscription  to  such  corporations  are  held  valid.  Lafayette  &c.  R.  R.  v.  Geiger,  34 
Ind.  185 ;  John  v.  Cincinnati  &c.  R.  R.  35  Ind.  539. 

Where  the  Legislature  is  prohibited  from  pledging  the  State  credit  in  aid  of  cor- 
porations, it  seems  this  does  not  prevent  it  from  empowering  counties,  etc.,  to  pledge 
their  credit  for  such  purposes.  Gotten  v.  Leon  Co.  6  Flor.  610 ;  Prettyman  v.  Super- 
visors, 19  111.  406;  Robertson  v.  Rockford,  21  111.  451 ;  Clark  v.  Janesville,  10  Wise. 
136;  Bushnell  v.  Beloit,  Ib.  195. 

In  some  States  there  are  express  constitutional  provisions  on  this  subject,  but 
they  have  not  prevented  municipal  subscriptions.  Thus  in  Alabama,  "  The  State 
shall  not  engage  in  works  of  internal  improvement,  but  its  credit  in  aid  of  such  may 
be  pledged  by  the  General  Assembly  on  undoubted  security,"  Art.  4.  §  33,  and, 
"  The  General  Assembly  shall  not  have  power  to  authorize  any  municipal  corporation 
*  *  *  to  lay  a  tax  on  real  or  personal  property  to  a  greater  extent  than  2  per 
cent,  of  the  assessed  value  of  such  property."  Art.  4,  §  30.  Held,  that  subscriptions 
by  counties  to  railroads  were  not  forbidden;  and  a  statute  authorizing  subscriptions 
to  railroads  by  counties,  and  levy  of  a  tax  not  exceeding  1  per  cent,  on  real  and  per- 
sonal property  therefor,  is  not  obnoxious  to  the  second  provision,  although  there  is 
no  limit  placed  upon  the  number  of  railroads  to  which  a  county  may  subscribe,  and 
although  there  must  be  some  taxation  by  the  county  for  other  purposes  as  well  as 
by  cities  and  towns  within  it.  Ex  parte  Selma  &  Gulf  R.  R.  45  Ala.  696. 

The  Ohio  Constitution  provides  that  "  the  General  Assembly  shall  never  author- 
ize any  county,  city,  town,  or  township  by  vote  of  its  citizens  or  otherwise  to  become 
a  stockholder  in  any  joint  stock  company,  corporation,  or  association  whatever,  or 
to  raise  money  or  to  loan  its  credit  to  or  in  aid  of  any  such  company,  corporation,  or 
association."  Yet  it  was  held  that  a  city  might  be  authorized  to  construct  a  rail- 
road at  its  own  expense  and  raise  the  money  by  taxation.  Walker  v.  Cincinnati,  21 
Ohio,  N.  S.  14.  As  to  whether  a  constitutional  prohibition  upon  the  loaning  or 
giving  the  credit  of  the  State  applies  to  the  construction  of  a  railroad  by  the  State 
directly  or  by  subscription  to  its  stock,  see  Galtoway  v.  Jenkins,  63  N.  C.  147  ;  Uni- 
versity R.  R.  v.  Holden,  Tb.  410. 

Educational  Institutions. — That  a  municipality  cannot  be  authorized  to  lay  a  tax 
in  aid  of  a  private  educational  institution  was  held  in  Curtis  v.  Whiffle,  24  Wise. 
350.  But  where  the  Constitution  provided  for  "  reasonable  and  proportional "  tax- 
ation and  assessment,  a  law  allowing  a  town  to  raise  money  for  the  establishment  by 
the  State  of  an  agricultural  college  therein,  was  held  valid,  it  being  a  matter  of 
special  interest  and  benefit  to  that  town  as  well  as  of  general  interest  to  the  State. 
Merrick  v.  Amherst,  12  Allen,  500,  and  see  Jenkins  v.  Andover,  103  Mass.  94.  And 
in  Gordon  v.  Cornes,  47  K  Y.  608,  the  court  refused  to  relieve  against  a  tax  imposed 
by  the  State  upon  a  village  for  part  of  the  expense  of  locating  in  it  a  normal  school, 
holding  that  it  must  be  a  manifest  case  of  oppression  to  lead  the  court"  to  interfere 
with  a  tax  apportioned  by  the  Legislature  in  the  absence  of  constitutional  provisions. 
Other  Private  Enterprises. — In  a  late  case  in  Maine,  an  act  allowing  a  town  to 
raise  money  by  taxation  to  loan  to  individuals  on  condition  of  their  establishing  a 
manufactory  in  the  town  was  held  void.  Allen  v.  Jay,  60  Me.  124 ;  and  see  Opinion 


432  TAXATION. 

improvement,  and  are  taxed  in  proportion  to  the  amount  of 
such  benefit ;  and  the  whole  tax  and  expense  is  levied  upon 
them.  It  has  been  urged  that  this  mode  of  disposing  of  private 
property  was  a  violation  of  the  clause  declaring  that  private 
property  was  not  to  be  taken  without  just  compensation,  and 
that  it  disregarded  the-  proper  principles  of  taxation.  But  all 
these  objections  have  been  overruled,  and  it  has  been  decided 
in  many  of  the  States,  that  in  the  absence  of  any  express  con- 

of  the  Judges,  58  Me.  590.  In  a  still  later  case  in  Massachusetts,  an  act  authorizing 
the  raising  of  money  by  municipal  bonds,  in  order  to  assist  and  hasten  the  rebuild- 
ing of  a  tract  devastated  by  fire  by  loaning  the  money  on  mortgage  "  to  owners 
about  to  rebuild,"  was  held  unconstitutional. 

Bounties  to  Volunteers. — The  payment  of  bounties  to  volunteers  and  drafted  men 
to  fill  a  quota,  is  a  purpose  for  which  a  town  may  be  authorized  to  raise  money  by 
taxation.  Speer  v.  School  District,  50  Penn.  St.  150;  Washington  Co.  v.  Berwick, 
56  Penn.  St.  466  ;  State  v.  Collector,  2  Vroom,  189;  s.  c.  4  Vroom,  450;  State  v. 
Demarest,  3  Vroom,  528 ;  Taylor  v.  Thompson,  48  111.  9 ;  Shackford  v.  Newington, 
46  N.  H.  415 ;  Butler  v.  Putney,  43  Vt.  481 ;  per  contra,  see  Ferguson  v.  Sandram,  1 
Bush  (Ky.)  548,  where  such  legislation  was  held  invalid,  on  the  ground  that  it  im- 
posed taxes  for  national  and  not  for  State  purposes.  And  bounties  may  thus  be 
given  even  after  enlistment.  Brodhead  v.  Milwaukee,  19  Wise.  624  ;  State  v.  Rich- 
land  Township,  20  Ohio,  N.  S.  362;  but  per  contra,  Shackford  v.  Newington,  46  N. 
H.  415.  And  the  Legislature  may  authorize  the  refunding  of  money  advanced  by 
individuals  for  such  purposes  on  the  faith  of  repayment.  Weister  v.  Hade,  52  Penn. 
St.  474 ;  Johnson  v.  Campbell,  49  HI.  316  ;  Cass  Township  v.  Dillon,  10-  Ohio,  N.  S. 
38 ;  State  v.  Wilkesville,  20  Ohio,  N.  S.  288 ;  see  Freeland  v.  Hastings,  10  Allen, 
570 ;  and  even  it  seems  though  such  advances  were  made  without  expectation  of  re- 
payment. Hilbish  v.  Catherman,  6-i  Penn.  St.  154 ;  per  contra,  see  Perkins  v.  Mil- 
ford,  59  Me.  315.  It  has  been  held  that  a  town  may  be  authorized  to  lay  a  tax  to 
pay  the  commutation  of  drafted  men,  even  though  no  provision  be  made  for  substi- 
tutes. State  v.  Jackson,  2  Vroom,  189 ;  but  the  judgment  was  reversed  and  the  con- 
trary held  in  s.  c.  4  Vroom,  450.  And  the  Legislature  may  confirm  the  unauthorized 
vote  of  a  town  to  raise  money  for  such  purposes.^  Grim  v.  Weissenberg  Dist.  57 
Penn.  St.  433;  Booth  v.  Woodbury,  32  Conn.  118;  Bartholomew  v.  Harwinton,  33 
Conn.  408;  Winchester  v.  Corinna,  55  Me.  9;  State  v.  Demarest,  3  Vroom,  528; 
Kunkle  v.  Franklin,  13  Minn.  127;  Comer  v.  Folson,  75.  219.  A  town  cannot  raise 
money  by  tax  to  refund  to  individuals  the  sums  paid  by  them  for  substitutes.  Free- 
land  v.  Hastings,  10  Allen,  570.  See,  State  v.  Tappau,  29  Wise.  664,  which  holds 
that  while  the  Legislature  may  authorize,  it  cannot  compel  a  municipal  corporation 
to  impose  a  tax  to  pay  bounties.  This  case  contains  a  valuable  discussion  of  the 
general  question  of  local  taxation  for  quasi  public  matters. 

Other  Matters  of  Local  Concern. — A  county  tax  to  compensate  loss  by  a  change  of 
the  county  seat  has  been  held  valid.  Wilkinson  v.  Chatham,  43  Geo.  258.  And  the 
Legislature  may  make  a  municipality  liable  to  make  compensation  for  property 
destroyed  in  a  riot.  Luke  v.  Brooklyn,  43  Barb.  54 ;  Darlington  v.  New  York,  31 
N.  Y.  164. 


LOCAL   IMPROVEMENTS.  433 

stitutional  provision  upon  the  subject  of  taxation,  the  power 
to  tax  implies  the  power  to  apportion  the  taxation ;  and  that 
the  remedy  against  unwise  and  unjust  modes  of  taxation  lies 
with  the  Legislature  and  with  the  people,  arid  not  with  the 
judiciary.*  So,  in  Pennsylvania,  the  doubts  seem  now  set 
at  rest,  and  the  constitutionality  of  these  proceedings  main- 
tained.f 

In  Connecticut,  also,  it  has  been  decided  that  a  statute  au- 
thorizing a  municipal  corporation  to  grade  and  improve  streets, 
and  to  assess  the  expense  among  the  owners  and  occupants  of 
land  benefited  by  the  improvement,  in  proportion  to  the  amount 
of  such  benefit,  is  a  constitutional  law ;  that  such  an  assessment 
is  an  exercise  of  the  power  of  taxation  vested  in  the  State  Gov- 
ernment, and  is  not  in  conflict  with  any  provision  of  the  Consti- 
tution. The  same  rule  applies  where  power  is  given  to  lay  out 
highways,  streets,  and  avenues ;  and  though,  in  cases  of  this 
kind,  the  assessment  for  benefit,  as  it  is  called,  may  equal  the 
value  of  the  property  taken  for  the  improvement,  still  it  is  said 
not  to  conflict  with  the  provision  that  private  property  shall 
not  be  taken  without  compensation.  Where  an  assessment  for 
benefit  falls  on  the  same  person  from  whom  property  is  taken, 
it  is  said  that  the  estimated  benefit  is  the  compensation  for  the 
land  taken ;  but  that  this  is  only  a  mode  of  taxation.  J 

In  Michigan,  too,  it  has  been  decided  that  the  terms  "  pri- 
vate property"  and  the  "  property  of  individuals,"  in  the  consti- 
tutional provisions  prohibiting  the  taking  of  property  for  public 
use  without  compensation,  <fec.,  were  not  intended  to  include 
money  raised  by  assessment  for  the  purpose  of  paving  streets ; 
and  that  money  attempted  to  be  raised  for  these  purposes  is  not 
sought  to  be  taken  by  virtue"  of  the  sovereign  right  of  eminent 
domain,  but  in  the  exercise  of  the  sovereign  power  of  taxation. 

*  People  v.  Mayor  of  Brooklyn,  4  Com-  Matter  of  Fenelon's   Petition,  7  Penn.    173  ; 

stock,  419  ;  overruling  The   People    v.   The  and  Extension  of  Hancock  Street,  18  Perm. 

Mayor  of  Brooklyn,  6  Barb.  214;  Livingston  (6  Harris)  26,  where  it  is  declared  to  be  no 

v.  The  Mayor  of  New  York,  8  Wend.  85 ;  In  longer   an    open   question   in  Pennsylvania; 

the  Matter  of   Opening  Furman    Street,   17  Schenley  and  Wife  v.  City  of  Allegheny,  25 

Wendell,  649.      See   in   Kentucky,   Button's  Penn.  128,  affirms  Sharpless  v.  City  of  Phila- 

Heirs  v.  Louisville.  5  Dana,  30;  City  of  Lex-  delphia,  9  Harris,  147,  as  to  the  paving  and 

ington  v.  M'Quilian's  Heirs,  9  Dana,  513.  grading  of  streets  in  cities,  and  the  assess- 

f  M'Master  v.  Commonwealth,  3  Watts,  ment  of  the  expenses  of  the  same. 
292 ;  In  the  Matter  of  the  District  of  the  City          \  Nichols  v.  Bridgeport,  23  Conn.  189 ;  The 

of  Pittsburgh,  2  Watts  &  Serg.  320;  In  the  People  ex  rel.  Griffin  v.  The  May  or,  4  Corns.  4 19. 
28 


434  POLICE    POWERS. 

And  the  provisions  of  the  Constitution  relative  to  taking  pri- 
vate property  for  public  use  or  improvement,  and  the  mode  of 
ascertaining  the  compensatio'n  therefor,  do  not  apply  to  such 
assessment.* 

In  Louisiana,  however,  where  the  Constitution  (art.  105) 
provides  that  "  taxation  shall  be  equal  and  uniform  throughout 
the  State,"  f  the  system  of  assessing  the  expense  of  street  as- 
sessments and  other  municipal  improvements  on  such  neighbor- 
ing proprietors  as  are  most  benefited  by  them,  has  been  pro- 
nounced unconstitutional,  on  the  ground  that  in  that  State  the 
right  of  eminent  domain  and  the  power  of  taxation  are  both 
limited  under  the  Constitution ;  and  that  the  Legislature  has 
no  power  of  apportioning  taxation  for  public  purposes  what- 
ever, of  a  local  nature,  except  on  the  principles  of  equality  and 
uniformity.^ 

In  Pennsylvania,  it  has  been  decided  that  an  act  authorizing 
municipal  corporations  to  subscribe  to  the  stock  of  a  railroad 
corporation,  is  within  the  constitutional  powers  of  the  Legisla- 
ture ;  that  it  is  not  a  taking  of  private  property  for  public  use 
without  compensation,  because,  though  the  property  of  the  citi- 
zen may  be  more  heavily  taxed  than  before,  it  is  not  taken ;  and 
that  the  acts  of  this  kind  fall  within  the  scope  of  the  legisla- 
tive power  to  permit  the  appropriation  of  a  local  tax  within 
the  consent  of  the  local  authorities  ;  |  and  'the  same  point  has 
been  decided  in  Louisiana,  after  much  deliberation.^ 

It  being  thus  settled  that  the  clause  in  regard  to  private 
property  does  not  apply  to  taxation,  we  have  next  to  notice  a 
further  limitation  of  its  sweeping  phraseology.  The  clause 
prohibiting  the  taking  of  private  property  without  compensa- 

*  Williams  v.  Mayor  of  Detroit,  2  Michi-  J  Sharpless  v.  The  Mayor  of  Philadelphia, 

gan,  560.     A  distinction  is  here  taken  between  21  (9  Harris)  Penn.  147.     Black,  C.  J.,  Wood- 

the  power  of  eminent  domain  and  that  of  tax-  ward,  and  Knox  concurred  in  the  judgment, 

ation.     I  believe  that  in  strict  language  the  See,  to  same  point,  Moers  v.  City  of  Reading, 

power   of   eminent  domain,   as   the   general  21  Penn.  188.     In  the  last  case,  Lewis  and 

phrase,  expreses  the  absolute  power  of  the  Lowrie,   JJ.,   dissented.     The   discussion    is 

State  over  private  property  for  all  purposes  ;  able  and  interesting. 

and  that  the  power  of  taxation  is  but  a  branch  ^[  Police  Jury  v.  M'Donogh's  Succession,  8 

of  it.     But  see  post,  p.  438;  Commonwealth  La.  Ann.  R.  341 ;  New  Orleans  v.  Graihle,  9 

v.  Alger,  7  Cush.  53,  85.  L.  Ann.  R.  561.     See  also,  in  Kentucky,  Slick 

f  See  also  Gumming  v.  Police  Jury,  9  La.  v.  Maysville  and  Lexington  R.  R.,Co.   13  B. 

Ann.  R.  p.  503.  Monroe,  p.  1  ;  Justices  of  Clarke  Co.  v.  The 

%  Municipality  No.  2  v.  White,  9  La.  Ann.  P.  W.  &  K.  R.  Turnpike  Co.  11  13.  Monroe, 

R.  447.  143 


POLICE   POWERS.  435 

tion,  is  not  intended  as  a  limitation  of  the  exercise  of  those 
police  powers  which  are  necessary  to  the  tranquility  of  every 
w ell  ordered  community,  nor  of  that  general  power  over  private 
property  which  is  necessary  for  the  orderly  existence  of  all 
governments.  («)  It  has  always  been  held  that  the  Legislature 

(a)  Police  Powers. 

See  "  Taxation  v  and  "  Eminent  Domain." 

In  very  many  instances  summary  proceedings,  without  the  usual  forms  of  a  reg- 
ular judicial  trial,  have  been  held  valid  as  falling  within  the  police  powers  of  the 
Government.  The  .basis  of  these  powers,  their  object,  and  the  principles  by  which 
they  are  regulated  and  limited,  are  stated  at  large  in  the  text.  This  note  will  be  an 
abstract  of  illustrative  cases,  rather  than  a  re-discussion  of  the  underlying  principles. 
It  will  be  seen  that,  while  the  existence  of  these  power?  is  universally  admitted,  and 
while  there  is  a  general  agreement  in  the  statement  of  abstract  principles,  there  is 
some  discrepancy  in  the  application  of  these  principles  by  the  courts  to  given  facts 
and  transactions.  This  could  hardly  be  avoided.  There  being,  on  the  one  hand* 
the  great  constitutional  protection  to  life,  liberty,  and  property  in  the  guaranties  of 
jury  trial,  due  process  of  law,  and  the  like;  and  the  necessities  of  society  and  good 
government  demanding,  on  the  other  hand,  a  certain  amount  of  summary  and  repres- 
sive measures,  measures  which  would  lose  all  their  beneficial  effect  if  hampered  by 
the  somewhat  cumbrous  and  dilatory  machinery  of  the  more  regular  judicial  trial, 
different  courts  will  naturally  give  a  greater  or  a  less  force,  breadth,  and  extent  to 
these  exceptional  species  of  governmental  authority,  as  they  chiefly  consider  and  are 
affected  by  the  interests  of  society,  or  by  the  rights  of  the  individual.  Those  judges 
who  fix  their  attention  upon  the  interests  of  organic  society,  and  suffer  their  field  of 
vision  to  be  filled  by  that  object  of  contemplation,  will  allow  the  exceptional  police 
powers  to  encroach  upon  the  constitutional  safeguards  established  for  the  protection 
of  the  individual ;  while  the  judges  who  exalt  the  rights  of  the  individual  citizen, 
and  are  apt  to  forget  the  claims  of  the  whole  body  politic,  of  which  the  individual 
is  but  a  unit,  will  curtail  these  exceptional  police  powers  within  the  narrowest 
limits.  Hence  the  discrepancy  and  conflict  of  decision  we  have  mentioned — a  con- 
flict, however,  which  arises  in  matters  of  detail,  rather  than  in  the  broad  generaliza- 
tions in  which  the  powers  themselves  must  be  theoretically  expressed.  We  shall,  there- 
fore, in  this  note,  state  the  decisions  in  the  most  condensed  manner,  and  refer  the 
reader  for  any  discussion  to  the  cases  themselves. 

Summary  statutory  proceedings  for  the  seizure,  detention,  and  sale  of  stray 
animals  running  at  large  have  been  sustained.  Hard  v.  Nearing,  44  Barb.  472; 
Campbell  v.  Evans,  45  N.  Y  356;  Cooke  v.  Gregg,  46  K  Y.  439;  Squares  v.  Camp- 
bell, 60  Barb.  391 ;  Gosselink  v.  Campbell,  4  Iowa,  296 ;  Roberts  v.  Ogle,  30  111.  459. 
But  otherwise  as  to  animals  found  trespassir.g  on  private  inclosures.  Rockwell  v. 
Nearing,  35  N.  Y.  302 ;  and  see  Fox  v.  Dunckel,  55  Barb.  4?1 ;  Donovan  v.  Vicksburg, 
29  Miss.  247. 

An  act  allowing  "  floating  logs  "  to  be  taken  up,  and,  if  not  redeemed  within  two 
months,  to  become  the  property  of  the  captor,  without  notice  to  the  owner,  &c.,  was 
held  void  in  Pennsylvania.  Craig  v.  Kline,  65  Penn.  St.  399. 

A  statute  for  the  abating  a  nuisance  does  not  take  away  property  without  due 
process  of  law,  for  the  common  law  recognized  the  power  to  abate  a  nuisance  in  a 


436  POLICE   POWERS. 

may  make  police  regulations,  although  they  may  interfere  with 
the  full  enjoyment  of  private  property,  and  though  no  compen- 

suminary  manner;  but  it  seems  the  Legislature  cannot  make  that  a  nuisance  which 
\vas  not  so  at  the  common  law,  so  as  to  be  liable  to  summary  abatement.  Coe  v. 
Schultz,  47  Barb.  64  ;  and  see  Roberts  v.  Ogle,  30  111.  459.  Thus,  a  city  ordinance 
declaring  a  wharf  a  nuisance,  when  it  is  not  so  within  any  general  law  of  the  State 
or  city,  is  invalid.  Yates  v.  Milwaukee,  10  Wall.  497.  But  see  cases  cited  below 
sustaining  statutes  which  declare  that  spirituous  liquors  are  a  nuisance,  and  the  sale 
of  them  a  nuisance. 

"Dog  laws  "  (so  called)  were  held  constitutional  in  Mitchell  v.  Williams,  27  Incl. 
62;  State  v.  Cornwall,  27  Ind.  120;  Blair  v.  Forehand,  100  Mass.  136.  Also  a  law 
for  the  removal  of  dead  animals,  and  that  no  action  lay  for  the  value  of  their  car- 
casses. Underwood  v.  Green,  3  Robt.  86.  And  an  ordinance  of  a  board  of  health  as 
to  slaughter-houses,  prohibiting  their  erection  within  certain  limits.  Ex  parte 
Sbrader,  33  Cal.  279.  And  harbor  regulations.  Roosevelt  v.  Godard,  52  Barb.  533. 
As  to  drains,  see  West  v.  B.  P.  Draining  Co.  32  Ind.  138;  and,  also,  see  "  Eminent 
Domain." 

As  to  police  powers  over  interments  of  the  dead,  see  Kincaid's  Appeal,  66  Penu. 
St.  411,  in  which  case  a  statute  authorizing  the  sale  of  a  burying-ground,  and  disiu- 
terment  of  the  bodies,  the  proceeds  of  sale  to  be  applied  to  the  expense  of  removal, 
was  upheld. 

Laws  declaring  places  kept  for  the  illegal  sale  of  intoxicating  liquors  to  be  nui- 
sances have  been  held  valid.  Commonwealth  v.  Howe,  13  Gray,  26.  And  laws  for 
the  forfeiture  of  liquors.  Gray  v.  Kimball,  42  Me.  299;  State  v.  Miller,  48  Me.  576; 
Our  House  v.  State,  4  Greene  (Iowa),  172;  State  v.  Brennan's  Liquors,  25  Conn. 
278  ;  Gill  v.  Parker,  31  Vt.  610;  Santo  v.  State,  2  Clarke  (Iowa),  165  ;  per  contra,  see 
Hibbard  v.  People,  4  Mich.  125,  there  being  no  provision  for  notice  or  trial;  a 
fortiori  prohibitory  laws  are  valid.  People  v.  Gallagher,  4  Mich.  244.  A  statute 
prohibiting  the  distillation  of  grain  was  held  valid,  in  Ingram  v.  State,  39  Ala. 
247.  But  the  entire  prohibition  of  manufacture  and  sale  of  liquor,  except  to  State 
agents,  and  by  them  for  medicinal  purposes,  was  held  void  in  State  v.  Beebe,  6  Ind. 
501. 

License  laws  regulating  the  sale  of  liquors  are  valid.  Keller  v.  State,  11  Md. 
525 ;  Mason  v.  Lancaster,  4  Bush  (Ky.)  406 ;  Metropolitan  Board  v.  Barrie,  34  N. 
Y.  657;  Perdue  v.  Ellis,  18  Geo.  586.  The  sale  of  liquors  within  a  certain  dis- 
trict, e.  g.,  within  five  miles  of  a  college,  may  be  prohibited.  Dorman  v.  State,  34 
Ala.  216. 

A  statute  requiring  a  license  fee  to  be  paid  to  a  charity  by  persons  following  oc- 
cupations affectirfg  the  public  morals,  a.  g.,  theatrical  exhibitions,  is  a  proper  exercise 
of  the  police  powers.  Charity  Hospital  v.  De  Bar,  1 1  La.  Ann.  385 ;  and  see  "  Tax- 
ation." And  so,  also,  is  an  act  requiring  the  gauging  of  casks,  &c.,  by  a  public 
gaugtr,  and  providing  for  his  fees.  Addison  v.  Saulnier,  19  Cal.  82.  That  the  police 
power  does  not  extend  to  capitation  tax  upon  any  class  of  foreigners  qua  foreigners, 
as  such  a  tax  would  interfere  with  the  power  of  Congress  over  commerce,  see  Lin 
Sing  v.  Washburn,  20  Cal.  534. 

Petty  offenses  may  be  restrained  by  summary  proceedings  under  the  police 
powers ;  on  this  principle,  a  city  ordinance  for  the  summary  conviction  and  punish- 
ment of  lewd  women  was  upheld  in  Shafer  v.  Murama,  17  Md.  331.  But  a  statute 


POLICE  POWERS.  437 

sation  is  given.  So,  an  act  authorizing  harbor-masters  to  direct 
vessels  where  to  station,  though  interfering  with  private  en- 

authorizing  the  arrest  of  a  person  disobeying  orders,  &c.,  at  a  fire,  and  his  detention 
until  the  fire  should  be  extinguished,  was  held  void,  as  it  contained  no  provision  for 
a  trial.  Judsou  v.  Reardon,  16  Minn.  431.  And  imprisonment  of  children  without 
crime  cannot  be  justified  under  the  police  power.  People  v.  Turner,  55  HI.  280. 

"  Law  of  the  land,"  in  prosecutions  for  offenses  punishable  capitally,  or  by  in- 
famous punishment,  includes  and  requires  indictment  by  a  grand  jury.  Jones  v. 
Bobbins,  8  Gray.  329. 

The  constitutional  guaranty  may  be  waived.  Thus,  a  person  becoming  surety  on 
an  appeal  bond,  under  a  statute  authorizing  judgment  to  be  entered  summarily  on 
the  bond  against  him,  cannot  object  to  the  validity  of  the  statute.  Chappee  v. 
Thomas,  5  Mich.  53;  Davidson  v.  Farrell,  8  Minn.  258.  And  the  same  was  held  in 
respect  to  sureties  in  replevin.  Pratt  v.  Donovan,  10  Wise.  378.  But  the  court  was 
equally  divided  in  respect  to  the  validity  of  a  similar  statute  in  case  of  a  criminal 
recognizance,  Lang  v.  People,  14  Mich.  439,  and  were  of  opinion  that  a  similar 
statute  authorizing  summary  process  against  the  sureties  of  a  town  treasurer  was  void. 
Lenz  v.  Charlton,  23  Wise.  478. 

Statutes  for  the  protection  of  the  public  safety  and  promotion  of  the  public  good 
have  been  held  valid  under  the  police  power,  although,  within  certain  reasonable 
limits,  they  departed  from  the  regular  form  of  judicial  proceeding,  were  summary  in 
their  operation,  and  caused  injury  and  loss  to  individuals. 

As  illustrations :  an  act  providing  that  the  owner  of  unfenced  land  should  have 
no  action  for  trespass  by  cattle  thereto  was  sustained  in  Myers  v.  Dodd,  9  Ind. 
290.  A  statute  prohibiting  the  keeping  of  slaves  on  a  plantation  without  a  white  per- 
son also  present.  Molett  v.  State,  33  Ala.  408.  An  act  requiring  railroads  to  rebuild 
fences  destroyed  by  fire  along  their  tracks.  Penn.  R.  R.  v.  Riblet,  66  Penn.  St.  164. 

But  where  the  convenience  and  safety  of  travelers  are  provided  for  in  the.  charter 
of  a  road,  and  penalties  affixed,  a  subsequent  statute  making  the  forfeiture  of  the 
charter  a  penalty  for  neglect  in  keeping  any  part  of  the  road  in  repair  cannot  be 
sustained  as  a  valid  exercise  of  the  police  power.  People  v.  Jackson,  &c.  PI.  R.  9 
Mich.  285. 

It  is  within  the  police  power  to  compel  fishways  to  be  made  by  private  owners 
in  their  established  dams  in  unnavigable  streams.  State  v.  Franklin  Falls  Co.  49 
N.  H.  240.  But  would  not  be  if  the  owners  had  acquired  a  prescriptive  right  as 
against  the  public.  Ibid.  p.  251.  The  court  held,  however,  that  no  such  right  had 
been  acquired  even  by  twenty  years'  user. 

The  United  States  has  no  police  powers  within  State  limits.  United  States  v.  De 
Witt,  9  Wai.  41. 

The  provisions  of  the  United  States  Constitution  as  to  due  process  of  law  are  not 
restrictions  upon  the  States.  Twitchell  v.  Commonwealth,  7  Wai.  321. 

The  act  of  Congress  of  6th  August,  1861,  requiring  the  President  in  certain  cases 
to  cause  certain  property  "  to  be  seized  and  confiscated  and  condemned,''  did  not 
authorize  it  to  be  done  except  by  due  process  of  law.  Hodgson  v.  Millward,  3 
Grant's  Cas.  (Penn.)  406.  The  act  of  Congress  of  March  3,  1863,  making  the  order 
of  the  President  a  defense  against  any  action  to  recover  damages  for  any  search, 
seizure,  etc.,  made  by  its  authority,  was  held  unconstitutional  in  Griffen  v.  Wilcox, 
21  Ind.  370 ;  and  see  Drehman  v.  Stifle,  8  Wai.  595. 


438  POLICE    POWERS. 

gao-ements,  is  not  a  violation  of  the  Constitution.*     A  statute 

fe    o 

of  Massachusetts  which,  without  compensation,  imposes  a 
penalty  on  any  person  who  shall  take,  carry  away,  or  remove 
any  stones,  gravel,  or  sand  from  any  of  the  beaches  in  the  town 
of  Chelsea,  for  the  protection  of  the  harbor  of  Boston,  and  the 
prohibition  of  which  extends  as  well  to  the  owner  of  the  soil 
as  to  strangers,  has  been  held  constitutional  and  valid ;  this  is 
not  such  a  taking  of  private  property  and  appropriating  it  to 
public  use,  as  to  render  it  void  because  no  compensation  is  pro- 
vided for  the  owners,  upon  the  ground  that  it  is  only  a  just  and 
legitimate  exercise  of  the  power  of  the  Legislature  to  regulate 
and  restrain  such  particular  use  of  property  as  would  be  in- 
jurious to  the  public.f 

In  the  same  State  it  13  well  settled  that  the  Legislature  has 
power  to  make  regulations  in  the  nature  of  police  regulations, 
which,  though  affecting  the  value  and  even  the  enjoyment  of 
private  property,  are  held  not  to  conflict  with  the  constitutional 
provisions  devised  to  secure  and  protect  private  property.  By 
an  ordinance  passed  in  1641,  by  the  colony  of  Massachusetts, 
the  proprietors  of  upland  bordering  on  the  sea  have  an  estate 
in  fee  in  the  adjoining  flats  above  low-water  mark,  and  within 
one  hundred  rods  of  the  upland;  but  notwithstanding  this 
right,  the  Legislature  has  power  to  establish  lines  in  the  harbor 
of  Boston,  beyond  which  no  wharf  shall  be  extended  or  main- 
tained, and  to  prohibit  building  beyond  such  lines ;  and  such 
statutes,  although  they  make  no  compensation  to  the  proprie- 
tors, are  not  unconstitutional  as  taking  private  property  and 
appropriating  it  to  public  uses  without  compensation.;]; 

In  this  case  the  court  said : 

We  think  it  is  a  settled  principle,  growing  out  of  the  nature  of  well-ordered 
civil  society,  thaj  every  holder  of  property,  however  absolute  and  unqualified 
may  be  his  title,  holds  it  under  the  implied  liability  that  his  use  of  it  shall  not 
be  injurious  to  the  equal  enjoyment  of  others  having  an  equal  right  to  the 
enjoyment  of  their  property,  nor  injurious  to  the  rights  of  the  community. 
All  property  in  this  commonwealth,  as  well  that  in  the  interior  as  that  border- 
ing on  tide-waters,  is  derived  directly  or  indirectly  from  the  Government,  and 

*  Vanderbilt  v.  Adams,  7  Cowen,  349.  tremely   difficult  to   lay   down  any  general 

f  Commonwealth  v.  Tewksbury,   11   Met.     rule. 

65.     It  was  well  said,  in  this  case,  to  be  ex-          \  Commonwealth  v.  Alger,  TCush.  53,  per 

Shaw,  C.  J. 


POLICE    POWERS.  439 

held  subject  to  those  general  regulations  which  are  necessary  to  the  common 
good  and  general  welfare.  Rights  of  property,  like  all  other  social  and  con- 
ventional rights,  are  subject  to  such  reasonable  limitations  in  their  enjoyment, 
as  shall  prevent  them  from  being  injurious,  and  to  such  reasonable  restraints 
and  regulations  established  by  law,  as  the  Legislature,  under  the  governing  and 
controlling  power  vested  in  them  by  the  Constitution,  may  think  necessary  and 
expedient. 

This  is  very  different  from  the  right  of  eminent  domain, — the  right  of  a 
government  to  take  and  appropriate  private  property  to  public  use  whenever 
the  public  exigency  requires  it,  which  can  be  done  only  on  condition  of  provid- 
ing a  reasonable  compensation  therefor.  The  power  we  allude  to  is  rather  the 
police  power,  the  power  vested  in  the  Legislature  by  the  Constitution,  to  make, 
ordain,  and  establish  all  manner  of  wholesome  and  reasonable  laws,  statutes, 
and  ordinances,  either  with  penalties  or  without,  not  repugnant  to  the  Con- 
stitution, as  they  shall  judge  to  be  for  the  good  and  welfare  of  the  common- 
wealth, and  of  the  subjects  of  the  same. 

It  is  much  easier  to  perceive  and  realize  the  existence  and  sources  of  this 
power  than  to  mark  its  boundaries,  or  prescribe  limits  to  its  exercise.  There 
are  many  cases  in  which  such  a  power  is  exercised  by  all  well-ordered  govern- 
ments, and  where  its  fitness  is  so  obvious  that  all  well-regulated  minds  will 
regard  it  as  reasonable.  Such  are  the  laws  to  prohibit  the  use  of  warehouses 
for  the  storage  of  gunpowder  near  habitations  or  highways;  to  restrain  the 
height  to  which  wooden  buildings  may  be  erected  in  populous  neighborhoods, 
and  require  them  to  be  covered  with  slate  or  other  incombustible  material ;  to 
prohibit  buildings  from  being  used  for  hospitals  for  contagious  diseases,  or  for 
the  carrying  on  of  noxious  or  offensive  trades  ;  to  prohibit  the  raising  of  a  dam 
and  causing  stagnant  water  to  spread  over  meadows  near  inhabited  villages, 
thereby  raising  noxious  exhalations,  injurious  to  health  and  dangerous  to  life. 

Nor  does  the  prohibition  of  such  noxious  use  of  property — a  prohibition 
imposed  because  such  use  would  be  injurious  to-the  public — although  it  may 
diminish  the  profits  of  the  owner,  make  it  an  appropriation  to  a  public  use,  so 
as  to  entitle  the  owner  to  compensation.  If  the  owner  of  a  vacant  lot  in  the 
midst  of  a  city  could  erect  thereon  a  great  wooden  building,  and  cover  it  with 
shingles,  he  might  obtain  a  larger  profit  of  his  land  than  if  obliged  to  build  of 
stone  or  brick,  with  a  slated  roof.  If  the  owner  of  a  warehouse  in  a  cluster  of 
other  buildings  could  store  quantities  of  gunpowder  in  it  for  himself  and  others, 
he  might  be  saved  the  great  expense  of  transportation.  If  a  landlord  could  let 
his  building  for  a  small-pox  hospital  or  a  slaughter  house,  he  might  obtain  an 
increased  rent.  But  he  is  restrained,  not  because  the  public  have  occasion  to 
make  the  like  use  or  to  make  any  use  of  the  property,  or  to  take  any  use  of 
the  property,  or  to  take  any  benefit  or  profit  to  themselves  from  it, — but 
because  it  would  be  a  noxious  use,  contrary  to  the  maxim,  sic  utere  tuo  ut 
alienum  non  Icedas.  It  is  not  an  appropriation  of  the  property  to  a  public  use, 
but  the  restraint  of  an  injurious  private  use  by  the  owner;  and  it  is  therefore 
not  within  the  principle  of  property  taken  under  the  right  of  eminent 
domain.  The  distinction,  we  think,  is  manifest  in  principle  ;  although  the  facts 


440  PUBLIC  WATERS. 

and  circumstances  of  different  cases  are  so  various  that  it  is  often  difficult  to 
decide  whether  a  particular  exercise  of  legislation  is  properly  attributable  to 
the  one  or  the  other  of  these  two  acknowledged  powers.* 

There  is  now  no  occasion  and  no  ground  to  deny  or  question  the  full  and 
sovereign  power  of  the  commonwealth,  within  its  limits,  by  legislative  acts  to 
exercise  dominion  over  the  sea  and  the  shores  of  the  sea,  and  all  its  arms  and 
branches,  and  the  lands  under  them,  and  all  other  lands  flowed  by  tide-water, 
subject  to  the  rights  of  riparian  ownership.  Whether  any  portion  of  this 
sovereignty  remained  in  the  British  crown,  it  is  now  immaterial  to  inquire ; 
for  it  is  quite  certain  that  the  entire  right  of  property  in  the  soil,  was  granted 
to  the  colonists  in  their  aggregate  capacity ;  and  if  any  power  remained  in  the 
crown,  it  was  that  of  dominion  and  regulation  of  the  public  right ;  and  this 
was  wholly  determined  by  the  Declaration  of  Independence,  acknowledged  and 
acceded  to  by  the  treaty  of  peace,  sanctioned  by  an  act  of  Parliament.  This 
right  of  dominion  and  controlling  power  over  the  sea  and  its  coasts,  shores, 
and  tide-waters,  it  is  settled  that  it  vested  in  the  several  States  in  their 
sovereign  capacity  respectively,  and  was  not  transferred  to  the  United  States 
by  the  adoption  of  the  Constitution  intended  to  form  a  more  perfect  union. 
Special  jurisdiction  has  been  from  time  to  time  vested  in  the  General  Govern- 
ment for  special  purposes ;  but  the  general  jurisdiction  remains  with  the 
several  States,  subject,  however,  to  such  regulations  as  Congress  may  make  in 
the  exercise  of  their  admitted  powers  to  regulate  foreign  commerce  and  commerce 
among  the  States.  Such  is  the  principle  determined  by  the  Supreme  Court  of 
the  United  States,  the  ultimate  tribunal  to  decide  questions  of  this  kind.f 

.  So  it  has  been  expressly  decided  in  the  same  State  that  the 
clause  in  the  Constitution  declaring  that  private  property  is  not 
to  be  taken  for  public  use  without  compensation,  does  not  apply 
to  the  laws  declaring  that  certain  property  shall  be  destroyed 
or  confiscated  as  being  injurious  to  the  interests  of  public 
policy,  as  Jiquor  or  gunpowder.  It  is  competent  for  the  Legis- 
lature to  declare  the  possession  of  certain  articles  of  property, 
either  absolutely  or  when  held  in  particular  places  and  under 
particular  circumstances,  to  be  unlawful,  because  they  would 
be  injurious,  dangerous,  or  obnoxious.  J  • 

On  the  same  general  grounds,  the  power  of  the  Legislature 
over  the  great  internal  communications  of  a  State,  whether  by 
land  or  water,  has  been  asserted.  It  has  been  contended  that 
a  navigable  river  is  a  public  highway,  and  that  the  Legislature 

*  Commonwealth  v.  Alger,  7  Cush.  53,  84.  f  Commonwealth   v.    Alger,    7    Cashing, 

I  have  already,  ante,  p.  424,  called  attention  to  53,   82,   citing  New   Orleans  v.  The  United 

what  I  suppose  to  be  the  true  rules  of  term-  States,   10  Pet.  662,  737 ;  Pollard  v.  Hagan, 

inology  in   regard   to   eminent  domain  and  3  How.  212. 

taxation.  \  Fisher  v.  McGirr,  1  Gray,  pp.  26,  41. 


PUBLIC   WATERS.  441 

cannot  interfere  with  its  use  without  adequate  indemnity.  But. 
the  contrary  has  been  decided.  In  Massachusetts,  an  act  of 
the  Legislature  authorizing  the  building  of  a  bridge  over 
navigable  waters  within  the  limits  of  the  commonwealth,  has 
been  held  not  unconstitutional.  The  Legislature  are  to  deter- 
mine when  the  public  convenience  and  necessity  require  such 
an  obstruction  to  navigation,  and  upon  what  terms  and  con- 
ditions it  shall  be  allowed.  It  has  power  to  regulate  and 
control  by  .law,  all  public  highways  and  navigable  waters.""' 
So  in  Maine,  it  has  been  held  that  the  Legislature  may  lay  out 
a  highway  or  change  the  course  of  a  public  river,  when  the 
public  convenience  requires  it,  although  private  rights  may  be 
thereby  affected,  f 

We  have  next  to  consider  another  limitation  on  the  -general 
words  of  the  clause  under  consideration.  The  constitutional 
restriction  on  legislative  action  in  regard  to  private  property, 
does  not  prevent  the  sovereign  power  from  acting  upon  personal 
rights  that  are  not  vested  at  the  time  of  the  passage  of  the  law. 
So  in  regard  to  the  husband's  interest  in  the  wife's  property, 
it  has  been  held  that  as  to  real  property  belonging  to  her  at 
the  time  of  the  marriage,  he  takes,  by  the  rules  of  the  common 
law,  a  vested  interest  which  no  subsequent  legislation  can 
defeat ;  but  as  to  her  future  acquisitions  they  may  be  regulated 
by  law, — in  other  words,  he  takes  whatever  interest,  if  any, 
that  the  Legislature  before  she  is  invested  with  them  may  think 
proper  to  prescribe.  All  prospective  possible  rights  arising 
from  existing  legislation,  are  liable  to  be  abridged  or  revoked 
by  future  legislation ;  %  and  consequently  they  do  not  conflict 
with  the  legislative  provisions  as  to  the  obligation  of  contracts, 
nor  with  those  relating  to  the  inviolability  of  property.  |  So 

*  Commonwealth   v.  Breed,  4  Pick.  464.  power  of  the  judiciary  over  the  subject.     See 

In  this  case  it  was  insisted  that  the  act  was  Stark  v.  M'Gowan,  1  Nott  &  M'Cord  11.  400,  n. 
obtained   by   fraud.     The   court  said,  "  If  a  f  Spring  v.  Russell  et  al  7  Greenleaf,  292  ; 

legislative  act  may  be  avoided  for  this  cause,  where   held  that  a  plaintiff  had  no  right  of 

yet  fraud  is  always  a  question  of  fact  pecul-  action  against  certain  canal  proprietors  who, 

iarly   within    the   province   of    a  jury,   and  under   the  authority  of  the    Legislature,  had 

cannot  be  inferred  by  the  court."     The  ques-  turned  the   channel  of  Saco   river,  and  thus 

tion    whether  and  to  what  extent  it  can  be  prevented  the  plaintiff  from  floating  his  logs 

shown   that   a  given  legislative  act  was  ob-  down  the  river,  as  he  otherwise  would  have 

tained  by  fraud,  seems  still  open.     In  regard  done. 

to   strictly   private    bills,  strong    arguments  i  Sleight  v.  Read,  18  Barbour,  159. 

may   be   urged  ;    but  there   seems,   even   in  f  White  v.  White,  5  Barb.  474 ;  Blood  v. 

these  cases^  great  difficulty  in  asserting  the  Humphrey,  17  Barb.  660. 


442  ALL   PROPERTY   CAX  BE  TAKEN. 

^again  in  regard  to  mere  inchoate  rights,  as  of  dower  during 
coverture,  the  right  can  be  divested  or  regulated  by  an  act  of 
the  Legislature,  at  any  time  during  the  husband's  life.* 

Having  arrived,  therefore,  at  the  result  that  the  constitu- 
tional restrictions  upon  the  power  of  eminent  domain  do  not 
apply  to  those  branches  of  it  which  regulate  taxation  And  police 
enactments,  nor  affect  rights  not  actually  vested,  we  have  next 
to  observe  that  the  power  to  take  is  universal  and  absolute  ;  it 
applies  to  every  species  of  property,  and  the  Legislature  is  the 
sole  judge  of  the  exigency  calling  for  the  interposition  of  its 
authority. 

First,  all  property  can  be  taken,  no  matter  whether  real  or 
personal,  whether  susceptible  of  manual  possession  or  a  mere 
chose  in  action.  So  in  Pennsylvania,  it  has  been  held,  where 
land  is  taken  for  a  railroad,  that  the  interest  which  tenants 
hold  under  a  covenant  for  a  renewal  of  their  leases,  is  a  proper 
subject  of  compensation.f  Thus  a  franchise  to  build  and  main- 
tain a  toll-bridge,  may  be  appropriated,  and  the  right  of  an  in- 
corporated company  to  maintain  such  a  bridge  under  a  charter 
from  a  State,  may,  under  the  right  of  eminent  domain,  be  taken 
for  a  highway  ;  and  so  of  a  railroad.  J  So  too  in  Vermont,  it 
has  been  decided  that  an  act  of  the  Legislature  authorizing  the 
Supreme  and  County  Courts  to  take  the  franchises  of  a  turn- 
pike corporation  for  a  public  highway,  on  making  compensa- 
tion, i»  constitutional.!  So  in  New  Hampshire,  it  has  been 
held  that  the  franchises  of  a  corporation  may  be  taken  by  vir- 
tue of  the  exercise  of  the  power  of  eminent  domain.^]"  (ct) 

*  Moore  v.  City  of  New  York,  4  Sandf.  How.  83  ;  Boston  and  Lowell  R.  R.  Corp.  v. 

461.  Salem  and  Lowell  R.  Co.  2  Gray,  1. 

f  North  Perm.  R.  R.  Co.  v.  Davis,  26  Penn.  ||  Armington   et  al.   \.  Barnet   et   al.    15 

R.  (2  Casey)  238.  Verm.  375;  see  the  sagacious  remarks  of  Mr. 

\  West  I  {iver  Bridge  v.  Dix,  6  How.  507  ;  J.  Reclfield,  in  this  case,  on  the  Charles  River 

Richmond  F.  and  P.  R.  R.  v.  Louisa  R.  R.  13  Bridge  Case,  11  Peters.  539. 

T  Backus  v.  Lebanon,  11  N.  H.  R.  19. 


(a)  What  c<tn  be  Taken,  —  All  private  property,  except  money,  seems  to  be  subject 
to  the  right.  The  following  are  examples  and  illustrations.  Buildings  :  Wells  v. 
Somerset  &c.  R.  R.  47  Me.  345.  Timber,  stone,  and  materials  for  highways,  as  well 
as  land  :  Eldiidge  v.  Smith,  34  Vt.  484  ;  Watkins  v.  Walker  Co.  18  Tex.  585  ;  Bliss 
v.  Hosmer,  15  Ohio,  44;  Jerome  v  Ross,  7  Johns.  Ch.  315;  Wheelock  v.  Young,  4 
Wend.  G47  ;  Lyon  v.  Jerome,  15  Wend.  569.  Streams  of  water:  Gardner  v.  New- 
burg,  2  Johns.  Ch.  162.  Franchises,  corporate  or  otherwise  :  Red  River  Bridge  v. 


NECESSITY  FOR  TAKING.  443 

As  the  power  to  take  is  universal,  so  it  is  absolute ;  that  is 
to  say,  the  Legislature  are  the  sole  judges  of  the  existence  of 
the  exigency  which  demands  the  sacrifice  of  the  rights  of  in- 
dividuals. "  I  admit,"  says  Mr.  Chancellor  Walworth,  "  that 
the  Legislature  are  the  sole  judges  as  to  the  expediency  of  ex- 
ercising the  right  of  eminent  domain  for  the  purpose  of  making 
public  improvements  either  for  the  benefit  of  the  inhabitants  of 
the  State  generally,  or  of  any  particular  section  thereof."  *  "  It 
is  the  undoubted  and  exclusive  province  of  the  Legislature," 
says  the  Supreme  Court  of  the  State  of  Maine,  "  to  decide  when 
the  public  exigencies  require  that  private  property  be  taken 
for  public  uses."  f  (a) 

*  Varick  v.  Smith,  5  Paige,  160.  f  Spring  v.  Russell,  7  Greenl.  292. 

Clarksville,  1  Sneed  (Tenn.)  176;  In  re  Kerr,  42  Barb.  119;  White  River  Turnpike 
Co.  v.  Vt.  Cen.  R.  R.  21  Vt.  590 ;  Forward  v.  Hampshire  &c.  Canal  Co.  22  Pick  462 ; 
Springfield  v.  Conn.  R.  R.  R  4  Gush  63 ;  Central  Bridge  Co.  v.  Lowell,  4  Gray,  474 ; 
Boston  Water  Co.  v.  Boston  &c.  R.  R.  23  Pick.  360 ;  State  v.  Noyes,  47  Me.  189; 
Crosby  v.  Hanover,  36  N.  H.  404 ;  Piscataqua  Bridge  v.  N.  H.  Bridge,  7  N.  H.  35  ; 
Chesapeake  &c.  Canal  Co.  v.  Baltimore  &c.  R.  R.  4  Gill  &  J.  1  ;  Newcastle  &c.  R.  R. 
v.  Peru  &c.  R.  R.  3  Ind.  464. 

One  railroad  may  be  authorized  to  cross  another  on  making  compensation.  Bal- 
timore &c.  R.  R.  v.  Union  R.  R.  35  Md.  224 ;  and  a  street  may  be  laid  out  across  a 
railroad  by  a  municipality  under  its  general  powers  to  lay  out  ways,  but  cannot, 
without  express  grant  of  authority,  be  made  to  destroy  or  greatly  injure  the  fran- 
chise. Hannibal  v.  Hannibal  &  St.  Jo.  R.  R.  49  Mo.  480. 

Though  the  franchise  and  property  of  a  corporation  may  be  taken,  its  real  prop- 
erty situate  in  another  State  cannot  be.  Crosby  v.  Hanover,  36  N.  H.  404. 

All  property  can  be  taken.  Bailey  v.  Miltenberger,  31  Penn.  St.  37  ;  People  v. 
Mayor,  32  Barb.  102. 

Property  may  be  taken  even  though  the  owner  is  under  disabilities.  East  Tenn. 
R.  R.  v.  Love,  3  Head,  63. 

(a)  The  Question  what  is  a  Public  Use  is  a  Judicial  one. — There  are  dicta  holding 
that  the  Legislature  has  absolute  power  to  determine  that  a  given  purpose  for  which 
it  authorizes  private  property  to  be  taken  is  a  public  use.  It  is  strange  that  any 
respectable  judge  should  have  expressed  such  an  opinion,  because  it  emasculates  the 
constitutional  safeguard,  and  places  private  property  at  the  mercy  of  the  Legislature. 
In  fact,  if  this  opinion  were  correct,  the  conceded  doctrine  that  the  Legislature  can- 
not authorize  private  property  to  be  taken  for  a  private  use,  would  be  overthrown. 
But  these  dicta  do  not  truly  state  the  law.  It  is  now  settled  that,  while  the  Legis- 
lative discretion  is  absolute  as  to  the  expediency  or  necessity  of  exercising  the  power 
if  the  use  is  public,  the  Legislature  cannot  finally  determine  whether  the  use  is  pub- 
lic; that  question  is  a  jud.cial  one  to  be  answered  by  the  courts.  Since  the  contrary 
dictum  of  Chancellor  Walworth  in  an  early  case,  which  has  been  carelessly  repeated 
by  other  judges,  this  subject  has  been  carefully  examined  by  able  courts,  and  has 


444  NECESSITY  FOR  TAKING. 

In  New  York,  it  has  been  decided  that  an  act  authorizing 
commissioners  to  enter  upon  and  appropriate  the  lands  of*  in- 
dividuals for  the  purpose  of  draining  a  swamp,  is  a  lawful  ex- 
ercise of  the  power  of  eminent  domain,  and  the  taking  of  such 
lands  as  far  as  is  necessary,  is  a  lawful  taking  of  the  same  for 
public  use.  It  is  for  the  Legislature  to  judge  of  the  degree  of 
the  necessity  which  exists  for  the  exercise  of  the  right  of  emi- 
nent domain ;  and  the  courts  will  not  interfere  to  restrain  the 
commissioners  by  injunction,  unless  they  are  violating  the  plain 
and  manifest  intent  of  the  statute,  or  are  proceeding  in  bad 
faith  *  (a) 

*  Hartwell  v.  Armstrong,  19  Barb.  166.  public  at  large  benefited  by  the  improvement, 
But  the  condition  of  providing  a  full  compen-  and  because  the  apportionment  by  area  of 
sation  to  the  owner,  is  fundamental  and  im-  surface  was  inequitable  ;  and  the  act  was  held 
perative  ;  and  where  an  act  authorizing  the  void.  The  constitutionality  of  a  law  to  drain 
draining  of  a  swanjp,  provided  that  the  dam-  wet  lands  at  the  expense  of  others,  is  discussed 
ages  or  compensation  to  the  owners  of  lands  in  Woodruff  v.  Fisher,  17  Barb.  224;  and  it 
tnken,  should  be  made  collectable  and  pay-  was  intimated  that  unless  the  work  was  for 
able  by  assessing  the  same  on  the  several  the  public  good  and  not  for  private  benefit, 
owners  of  the  land  drained,  according  to  the  the  act  could  not  be  sustained;  but  it  was 
number  of  acres  respectively  owned  by  each,  said  that  perhaps  after  such  an  act  of  legisla- 
— it  was  held  that  this  was  not  the  just  com-  tion,  it  is  to  be  presumed  that  the  work  will 
pensation  required  by  the  Constitution,  be-  be  beneficial  to  the  owners  of  the  lands  gen- 
cause  the  burden  ought  to  be  borne  by  the  erally. 

been  put  at  rest.  Indeed,  every  decision  holding  a  statute  invalid,  on  the  ground 
that  the  Legislature  cannot  take  private  property  for  a  private  use,  involves  the 
same  doctrine.  Tyler  v.  Beacher,  44  Vt.  648 ;  Loughbridge  v.  Harris,  42  Geo.  500  ; 
Concord  R.  E.  v.  Greely,  17  N.  H.  47,  57,  61 ;  Talbot  v.  Hudson,  16  Gray,  417,  421 ; 
Bankhead  v.  Brown,  25  Iowa,  540  ;  Sadler  v.  Langham,  34  Ala.  311,326-328;  Coster 
v.  Tide  Water  Co.  3  C.  E.  Green  (N.  J.)  54,  63 ;  Harris  v.  Thompson,  9  Barb.  350,  362 ; 
Matter  of  Townsend,  39  N.  Y.  171,  174,  181.  The  true  doctrine  was  very  accurately 
and  comprehensively  stated  by  Mr.  Justice  Woodruff  in  the  case  last  cited,  at  page 
174  of  the  report:  "It  has  indeed  been  said  that  the  right  of  eminent  domain  im- 
plies the  right  in  the  sovereign  power  to  determine  the  time  and  occasion  and  as  to 
what  particular  property  it  shall  be  exercised.  Hayward  v.  Mayor  &c.  7  N.  Y.  325. 
This  can  hardly  %e  supposed  to  import  that  the  Legislature  can,  by  its  mere  declara- 
tion, override  the  Constitution ;  that  by  declaring  the  use  to  be  public,  when  it'  is 
within  the  Constitution  a  private  use,  it  can  authorize  the  property  of  one  citizen  to 
be  taken  from  him  and  given  to  another,  for  a  compensation  to  be  ascertained  in  the 
manner  above  stated;  but  only  that,  where  the  use  for  which  the  property  is  desired 
is  in  its  nature  public,  the  Legislature  arc  the  supreme  and  final  judges  of  the  ques- 
tion, whether  the  public  necessity  or  benefit  is  such  as  to  call  for  the  exercise  of  the 
power  ;  whether  the  time  is  a  fitting  one  ;  what  particular  property  may  be  taken, 
and  in  what  manner  in  respect  to  the  instrumentalities  to  be  employed  for  the  pur- 
pose— whether  State  officers,  corporations,  or  individuals.  All  these  are  purely  mat- 
ters of  discretion  within  the  exclusive  cognizance  and  jurisdiction  of  the  Legislature, 
and  in  those  matters  I  apprehend  no  court  can  review  its  action." 

(a)  The  Necessity,  Expediency,  or  Propriety  of  the  Taking. — If  the  use  be  a  public 


PROPERTY  NOT  TO  BE  TAKEN  FOR  PRIVATE  USE.       445 

•   Thus  far  we  have  observed  that  the  clause  in  regard  to 
private  property  has  no  effect  upon  legislative  supremacy  in 

one,  the  decision  of  the  Legislature  as  to  the  necessity,  expediency,  or  propriety  of 
the  taking,  and  as  to  the  manner  and  instruments  of  the  taking,  whether  by  the 
State  itself,  or  by  individuals  or  corporations  to  whom  the  authority  is  delegated,  is 
final.  Gilmer  v.  Lime  Point,  18  Cal.  229 ;  Ford  v.  Chicago  &c.  R.  R.  14  Wise.  609 ; 
People  v.  Smith, '21  N.  Y.  597;  Matter  of  Albany  St.  11  Wend.  149;  Bankhead  v. 
Brown,  25  Iowa,  540  ;  Hays  v.  Risher,  32  Penn.  St.  169 ;  North  Mo.  R.  R.  v.  Lack- 
laud,  25  Mo.  515  ;  North  Mo.  R.  R.  v.  Gott,  25  Mo.  540  ;  Concord  R.  E.  Y.  Greely, 
17  N.  H.  47;  Matter  of  Townsend,  39  N.  Y.  174;  Contra  Costa  R.  R.  v.  Moss,  23  Cal. 
323  ;  Coster  v.  Tide  Water  Co.  3  C.  E.  Green,  54  ;  State  v.  Noyes,  47  Me.  189.  The 
Legislature  may  itself  lay  out  a  particular  way,  and  its  decision  is  final.  Haverhill 
Bridge  v.  County  Commrs.  103  Mass.  120  ;  see  Matter  of  Central  Park,  51  Barb.  277; 
Lewis  County  v.  Hayes,  1  Wash.  T.  128. 

The  owner  is  not  entitled  to  notice  or  hearing  on  the  question  of  taking.  People 
v.  Smith,  21  N.  Y.  595. 

Where  the  power  has  been  delegated  by  the  Legislature,  the  decision  of  the  per- 
son or  corporation  to  whom  the  delegation  is  made,  as  to  the  expediency,  etc.,  of  the 
taking,  is  in  general  final.  Hannibal  v.  Hannibal  &  St.  Jo.  R.  R.  49  Mo.  480;  and 
this  decision  of  the  depositary  of  the  power  is  in  general  final  as  to  the  quantity  to 
be  taken,  if  the  purpose  be  a  public  use,  unless  perhaps  in  case  of  gross  excess ;  but 
whether  the  purpose  for  which  this  depositary  seeks  to  take  the  land  is  a  public 
use,  is  a  judicial  question,  and  the  decision  of  the  depositary  is  not  final.  Eldridge 
v.  Smith,  34  Vt.  484.  In  this  case  the  railroad  company  having  the  general  power 
delegated  to  it,  sought  to  condemn  land  for  a  manufactory  of  cars,  and  for  dwellings 
for  its  operatives,  and  the  court  held  that  it  was  transcending  its  delegated  author- 
ity. But  in  another  case  it  was  held  that  a  railroad  company,  under  its  general 
delegation  of  authority,  might  condemn  land  for  its  depots,  engine  houses,  and  re- 
pair shops.  Han.  &  St.  Jo.  R.  R.  v.  Muder,  49  Mo.  165 ;  Chicago  &c.  R.  R.  v.  Wil- 
son, 17  111.  123 ;  Low  v.  Galena  &c.  R.  R.  18  111.  324  ;  Giesey  v.  Cincinnati  &c.  R.  R. 
4  Ohio,  N.  S.  308 ;  New  York  &c.  R.  R.  v.  Kip,  46  N.  Y.  546.  This  subject  was 
carefully  considered  and  fully  discussed  in  a  recent  case  in  New  York.  A  railroad 
company  was  acting  under  a  statute  which  authorized  it  to  take  land  "  for  any  pur- 
pose necessary  to  the  operation  of  such  railroad."  It  terminated  at  Whitehall,  at 
the  head  of  Lake  Champlain,  and  owned  land  covered  by  its  track,  depots,  docks, 
etc.  It  sought  to  acquire  additional  lands  for  buildings,  docks,  etc  ,  "for  a  certain 
anticipated  increase  of  business"  stated  in  its  petition.  There  was  no  pretence  that 
the  existing  business  of  the  railroad  demanded  the  additional  land,  but  it  was 
claimed  in  the  petition  that  by  certain  charters  granted  in  Canada,  and  certain  ar- 
rangements therein  made,  it  was  very  probable  that  there  would  be  a  great  increase 
of  business  through  Lake  Champlain,  and  that  to  do  the  business  when  it  came  th^ 
land  sought  to  be  taken  would  be  necessary,  and  that  :t  was  expedient  to  .take  it 
then.  On  appeal  from  an  order  appointing  commissioners,  the  court  held  that  by 
the  true  construction  of  the  statute  delegating  the  power  to  take  land,  it  was  the 
province  of  the  court  to  determine  whether  the  taking  was  necessary  for  the  uses  of 
the  corporation,  and  that  the  proposed  taking  in  this  instance  was  not  necessary. 
The  court  said  (p.  146) :  ''  It  may  be  safely  asserted  that  the  acquisition  of  lands  for 
the  purpose  of  speculation  or  sale,  or  to  prevent  interference  by  competing  lines  or 


446       PROPERTY  NOT  TO  BE  TAKEN  FOR  PRIVATE  USE. 

regard  to  taxation  or  general  police  powers — however  thase 
powers  may  be  affected  by  other  special  constitutional  clauses, 
—nor  in  regard  to  rights  not  vested  at  the  time  of  the  passage 
of  any  given  legislative  enactment.  We  have  also  stated  that 
the  power  to  take  private  property  applies  to  all  property,  and 
that  the  Legislature  is  the  sole  judge  as  to  the  fact  whether 
the  public  welfare  demands  the  sacrifice  of  the  private  right. 
We  have  still  to  consider  certain  other  questions  which  have 
presented  themselves  in  regard  to  the  power  of  the  State  Leg- 
islatures over  private  property.  And  of  these  the  most  im- 
portant is  whether,  under  our  forms  of  government,  and  under 
the  operation  of  the  constitutional  clause  above  cited,  private 
property  can  be  taken  for  any  but  public  purposes,  (a) 

methods  of  transportation,  or  in  aid  of  collateral  enterprises  remotely  connected  with 
the  running  or  operating  of  the  road,  although  they  may  increase  its  revenue  and 
business,  are  not  such  purposes  as  authorize  the  condemnation  of  private  property." 
Rensselaer  and  Saratoga  R.  R.  v.  Davis,  43  N.  Y.  137,  146. 

In  Louisiana,  the  decision  of  parish  authorities  that  it  is  necessary  to  lay  out  a 
public  road  may  be  reviewed  by  the  courts.  Le  Coul  v.  Police  Jury,  20  La.  Ann. 
3<>8.  By  some  of  the  State  Constitutions,  the  (i  necessity"  of  the  taking  is  submitted 
to  a  jury;  as  in  Michigan;  see  Mansfield  &c.  R.  R.  v.  Clark,  23  Mich.  519. 

It  has  been  held  in  New  York,  that  the  Legislature  may  compel  a  municipality 
(a  town)  to  construct  and  pay  for  highways  against  its  will.  People  v.  Flagg,  46 
N.  Y.  401.  But  as  the  whole  proceedings  under  the  right  of  eminent  domain  are  for 
the  public  good  and  not  for  any  private  benefit,  a  municipality  will  not  be  compelled 
by  mandamus,  at  the  suit  of  individuals,  to  complete  the  laying  out  of  a  street,  where 
the  title  to  the  land  taken  has  not  actually  vested,  but  proceedings  have  been  begun 
and  have  been  so  far  carried  on  that  the  complainants  will  be  injured  by  the  non- 
completion  of  the  improvement.  State  v.  Graves,  19  Md.  351. 

(«)  What  is  a  Public  Use. — It  is  now  the  settled  doctrine  throughout  the  several 
States,  that  the  business  and  purposes  of  railroads^  canals,  public  highways,  turn- 
pikes, bridges,  and  other  such  public  means  for  travel  and  for  the  transport  of  goods, 
are  a  public  use  within  the  meaning  of  the  Constitution.  The  following  cases  must 
be  taken  as  illustrations  of  public  uses,  rather  than  as  furnishing  any  general  defini- 
tion of  what  is  such  a  use.  Courts  have  carefully  avoided  giving  any  such  definition. 
The  objects  and  business  of  acqueduct  companies  and  water- works  companies  for  the 
supply  of  cities  with  water,  are  a  public  use.  Redd  all  v.  Bryan,  14  Md.  444 ;  Burden 
»  v.  Stein,  27  Ala.  104  ;  Lumbard  v.  Stearns,  4  Cush.  60;  Mayor  &c.  v.  Bailey,  2  Denio, 
452,  per  Gardiner,  president.  The  same  is  true  of  a  gas  company  organized  to  con- 
vey gas  from  a  natural,  spring  or  well  to  a  city.  Bloomfield  &c.  Gaslight  Co.  v. 
Richardson,  63  Barb.  437.  The  sewerage  of  a  city  is  a  public  use.  Hildreth  v. 
Lowell,  11  Gray,  345.  Also  the  raising  the  level  of  a  district  where  drainage  is  so 
defective  as  to  be  dangerous  to  public  health.  Dingley  v.  Boston,  100  Mass.  544  ; 
and  see  Sessions  v.  Crunkilton,  20  Ohio  N.  S.  349.  Some  cases  hold  the  drainage  of 
swamp  lands,  in  order  to  make  them  more  valuable,  to  be  a  public  use.  Egyptian 


PROPERTY  NOT  TO  BE  TAKEN  FOR  PRIVATE  USE.       447 

.  It  seems  to  be  the  sounder  construction,  that  the  declaration 
that  private  property  shall  not  be  taken  for  public  use  without 
compensation,  hnpliedly  prohibits  private  property  being  taken 

Levee  Co.  v.  Hardin,  27  Mo.  495;  Tide-water  Co.  v.  Coster,  3  C.  E.  Green  (N.  J.) 
518;  Matter  of  Drainage  &c.  6  Vroom,  497,  where  the  object  was  to  make  the 
lands  fit  for  cultivation  and  habitation,  as  well  as  to  promote  health.  But  other 
cases  hold  that  the  public  use  of  such  systems  of  drainage  lies  in  the  benefit  to  the 
public  health.  Hartwell  v.  Armstrong,  19  Barb.  166;  People  v.  Nearing,  27  N.  Y. 
306;  Cypress  &c. -Co.  v.  Hooper,  2  Mete.  (Ky.)  350;  Anderson  v.  Kerns  Drainage  Co. 
14  Ind.  199,  202.  In  this  last  case  it  was  expressly  held  that,  while  draining  swamp 
lands  for  purposes  of  health  was  a  public  use,  such  draining  for  purposes  of  making 
the  lands  more  valuable  was  not. 

And,  in  Ohio,  an  act  for  laying  out  drains  by  township  trustees  at  the  request  of 
individual  owners,  without  limiting  such  action  to  cases  where  the  public  good  re- 
quired it,  was  held  invalid  as  being  for  a  private  use.  Reeves  v.  Wood  County,  8 
Ohio,  N.  S.  333. 

Provisions  and  means  for  removing  dams  and  permitting  stagnant  and  offensive 
waters  to  flow  off,  thus  improving  the  health  of  a  whole  district,  are  a  public  use. 
Miller  v.  Craig,  3  Stockt.  (N.  J.)  175;  Talbot  v.  Hudson,  16  Gray,  417. 

Taking  land  for  a  public  school-house  is  taking  it  for  a  public  use.  Williams  v. 
School  Dist.  33  Vt.  271 ;  Long  v.  Fuller,  68  Penn.  St.  170  ;  Township  v.  Hackrnan, 
48  Mo.  243.  And  for  a  fort.  Gilmer  v.  Lime  Point,  18  Cal.  229.  And  for  a  public 
burying  ground.  Edwards  v.  Stonington  Cemetery  Ass.  20  Conn.  466. 

It  is  a  public  use  though  the  pleasure  of  the  public  is  chiefly  concerned,  as  in  a 
park  or  public  square.  Matter  of  Central  Park,  63  Barb.  282.  Or  in  a  highway  laid 
out  for  pleasure  travel.  In  re  Mt.  Washington  R.  R.  35  N.  H.  134.  Railroads  may 
take  land  for  purposes  properly  incidental  to  their  legitimate  business,  such  as  depots, 
engine  houses,  repair  shops.  Han.  &  St.  Jo.  R.  R  v.  Muder,  49  Mo.  165 ;  Chicago 
&c.  R.  R.  v.  Wilson,  17  111.  128 ;  Low  v.  Galena  &c.  R.  R.  18  111.  324 ;  Giesey  v.  Cin- 
cinnati &c.  R.  R.  4  Ohio,  N.  S.  308  ;  N.  Y.  &c.  R.  R.  v.  Kipp,  46  N.  Y.  546.  But  not 
for  a  manufactory  of  cars,  or  for  dwellings  for  its  operatives.  Eldridge  v.  Smith,  34 
Vt.  484. 

In  some  of  the  States  statutes  have  been  in  existence  from  an  early  day  which 
authorize  land  to  be  taken  for  mill  dams,  mill  sites,  and  the  like.  These  statutes 
have  been  sustained  in  some  New  England  States,  and  in  a  few  Western  States. 
Hazen  v.  Essex  Co.  12  Gush.  475 ;  Boston  and  Roxbury  Mill  Co.  v.  Newman,  12  Pick. 
467  ;  Fisk  v.  Framingham  Man.  Co.  12  Pick.  68;  Great  Falls  &c.  Co.  v.  Fernald,  47 
N.  H.  444  ;  Olmstead  v.  Camp,  33  Conn.  532 ;  Todd  v.  Austin,  34  Conn.  78  ;  Jordan  v. 
Woodward,  40  Me.  317 ;  Miller  v.  Frost,  14  Minn.  365  ;  Newcomb  v.  Smith,  1  Chand. 
(Wise.)  71 ;  Thien  v.  Voigtlander,  3  Wise.  461 ;  Pratt  v.  Brown,  3  Wise.  603.  On 
the  contrary,  such  statutes  are  held  invalid,  and  the  taking  of  land  for  mill  pur- 
poses is  held  to  be  a  taking  for  private  use,  in  Sadler  v.  Langham,  34  Ala.  311  ;  Tyler 
v.  Beacher,  44  Vt.  648  ;  Loughbridge  v.  Harris,  42  Geo.  500 ;  Hay  v.  Cohoes  Co.  3 
Barb.  47.  And  an  early  Tennessee  case  (Harding  v.  Goodlett,  3  Yerg.  41),  which 
had  sustained  the  validity  of  such  a  statute,  was  recently  overruled  in  Memphis 
Freight  Co.  v.  Memphis,  4  Cold.  419. 

A  corporation  was  created  to  unload  and  move  freight  in  Memphis,  and  was  au- 
thorized to  take  private  property  for  sheds,  tracks,  &c.,  to  be  used  in  its  said  busi- 


448       PROPERTY  NOT  TO  BE  TAKEN  FOR  PRIVATE  USE. 

for  private  use  at  all.  So,  in  New  York,  tlie  Supreme  Court  Las 
said,  "  The  Constitution,  .by  authorizing  the  appropriation  of 

ness.  This  delegation  of  power  was  held  void,  and  the  use  a  private  one.  Memphis 
Freight  Co.  v.  Memphis,  4  Cold.  419. 

Taking  land  for  a  "  township  road,"  is  taking  it  for  a  public  use.  Ferris  v. 
Bramble,  5  Ohio,  N.  S.  109.  Also  for  lateral  and  quasi  private,  railroads.  Bailey  v. 
Miltenberger,  31  Penn.  St.  37.  These  decisions  are  based  upon  the  peculiar  local 
systems  of  the  States  in  which  they  were  rendered,  and  upon  the  fact  that  the  ''  town- 
ship roads"  and  "lateral  railroads"  spoken  of  are  essentially  public  highways. 
Laud  cannot  be  condemned  for  private  ways,  and  statutes  authorizing  such,  taking 
for  ways  which  are  really  private  are  invalid,  although  the  ways  may  be  designated 
*'  neighborhood  roads."  Dickey  v.  Tennison,  27  Mo.  373 ;  Nesbitt  v.  Trumbo,  39  111. 
110;  Crear  v.  Crossly,  40  111.  175;  Bankhead  v.  Brown,  25  Iowa,  540;  Osborn  v.  Hart, 
24  Wise.  89. 

An  act  providing  for  the  extinguishing  of  ground  rents  on  payment  by  owner  of 
the  fee  of  the  value  as  found  by  a  jury  was  held  void,  in  Pennsylvania,  on  the 
ground  that  it  was  taking  property  for  a  private  use.  Palairet's  Appeal,  67  Penn. 
St.  479. 

The  use  is  a  public  one  within  the  meaning  of  State  Constitutions,  although  it 
is  the  public  of  the  United  States  that  is  to  be  benefited,  and  the  proceedings  are  insti- 
tuted in  State  courts  under  the  State  Constitutions.  Gilmer  v.  Lime  Point,  18  Cal. 
229  (case  of  a  fort)  ;  Redall  v.  Bryan,  14  Md.  444  (case  of  water-works  for  Washing- 
ton city) ;  Burt  v.  Merchants'  Ins.  Co.  106  Mass.  356  (site  for  a  post-office).  But  the 
Supreme  Court  of  Michigan  has  recently  held  the  contrary  doctrine  in  proceedings 
to  condemn  land  for  the  use  of  the  United  States  for  a  lighthouse.  Trombly  v. 
Humphrey,  23  Mich.  471.  It  seems  to  be  conceded  in  New  York,  in  a  recent  case, 
that  the  taking  may  be  for  the  benefit  of  a  neighboring  State,  e.  </.,  that  land  might 
be  taken  for  a  reservoir  in  New  York  for  the  use  of  a  canal  incorporated  and  located 
in  Pennsylvania.  Matter  of  Townsend,  39  N.  Y.  171. 

While  the  courts  have,  in  numerous  instances,  thus  pronounced  some  particular 
object  to  be  or  not  to  be  a  public  use,  they  have  not  attempted  to  construct  any 
formula  by  which  such  uses  are  to  be  determined  ;  they  have  seldom  even  endeavored 
to  lay  down  any  general  principle  which  might  be  helpful  in  constructing  a  defini- 
tion. It  is  possible,  nevertheless,  to  reach  some  broad  generalizations  from  the 
materials  furnished  by  the  decisions.  This  process  will  not  lead  us  to  any  single 
and  comprehensive  definition ;  it  will  consist  simply  in  a  statement  of  certain  classes 
of  objects  which  are  public  uses,  and  of  the  principles  by  which  these  classes  may  be 
ascertained  and  determined.  As  a  preliminary,  we  shall  quote  the  language  of  a  few 
recent  cases.  In  Todd  v.  Austin,  34  Conn.  78,  a  strong  attack  was  made  upon  the 
flowage  and  mill  acts  of  the  State,  but  their  validity  was  sustained.  The  court  was 
driven,  by  the  necessities  of  its  position,  to  give  a  broad  construction  to  the  phrase 
"  public  use,"  and  it  did  so,  without  flinching,  in  the  following  manner :  "  The 
Legislature  may  lawfully  grant  rights  of  easement  to  individuals  or  corporations,  to 
enable  them  to  erect  and  operate  structures,  if  the  result  of  their  operation  is  the 
production  of  an  article  or  thing  intended  to  be  furnished  or  sold  to  the  public  for 
a  beneficial  use,  and  to  supply  their  reasonable  wants.  This  proposition  covers  the 
case  in  hand,  for  the  flowage  law  is  intended  to  grant  rights  of  easement  which  will 
enable  individuals  or  corporations  to  _ enlarge  -or  erect  and  operate  structures,  the 


PROPERTY  NOT  TO  BE  TAKEN  FOR  PRIVATE  USE.       449 

private  property  to  public  use,  impliedly  declares  that,  for  any 
other  use,  private  property  shall  not  be  taken  from  one  and  ap- 

result  or  product  of  the  operation  of  which  will  be  articles,  such  as  cotton  or  woolen 
doth  and  the  like,  intended  to  be  sold  to  the  public  for  their  necessary  and  beneficial 
use."  Per  Butler,  J.,  p.  90.  The  "  public  "  here  means  simply  the  customers,  the 
persons  who  chose  to  buy  the  cotton  cloth  or  other  articles.  If  this  principle  be 
correct,  every  lawful  trade  or  business  or  profession,  in  which  a  person  is  a  producer, 
is  a  "  public  use."  Other  courts,  however,  are  not  so  sweeping  and  inclusive  in  their 
definitions.  In  Gilmer  v.  Linie  Point,  18  Cal.  229,  land  was  taken  for  the  United 
States  for  a  fort.  The  question  most  discussed  was  whether  property  could  be  con- 
demned in  and  by  State  courts  for  the  use  of  the  United  States,  it  being  conceded 
that  a  fort  was  a  public  use,  if  the  United  States  was  a  proper  public.  Baldwin, 
J.,  said  (p.  251) :  "  The  words  public  use  here  mean  a  use  which  concerns  the  whole 
community,  as  distinguished  from  a  particular  individual,  or  a  particular  number  of 
individuals.  It  is  not  necessary,  however,  that  each  and  every  member  of  society 
should  have  the  same  degree  of  interest  in  this  use,  or  be  personally  or  directly 
affected  by  it,  in  order  to  make  it  public.  *  *  *  If  the  use  for  which  the  property 
is  taken  be  to  satisfy  a  great  public  want  or  exigency,  it  is  a  public  use  within  the 
meaning  of  the  Constitution."  Again  (p.  252) :  "  This  public  use  need  not  be  a  use 
general  or  common  to  all  the  people  of  the  State  alike.  It  may  be  a  use  in  which 
but  a  small  portion  of  the  public  will  be  directly  benefited,  as  a  street  in  a  town,  a  bridge, 
or  a  railroad,  necessarily  local  in  its  benefits  and  advantages,  though  it  must  be  of 
such  a  character  as  that  the  general  public  may,  if  they  choose,  avail  themselves  of 
it."  In  Memphis  Freight  Co.  v.  Memphis,  4  Cold.  425,  the  court  said  :  "  There  is  a 
distinction  between  a  public  use  and  a  public  convenience.  To  authorize  the  taking 
of  private  property  for  public  use,  the  use  must  be  for  the  people  at  large — for  trav- 
elers, for  all — and  must  also  be  compulsory  by  them,  and  not  optional  with  the  cor- 
porators ;  must  be  a  right  in  the  people,  and  not  a  favor ;  must  be  under  public 
regulations  as  to  tolls,  &c.,  &c.  But  when  it  is  a  public  convenience  merely,  the 
right  to  take  private  property  does  not  exist."  The  doctrine  of  "  public  use,"  which 
seems  to  be  correct,  and  which  must  be  correct,  unless  the  door  is  opened  to  all  business 
and  private  enterprises  that  may  be  a  convenience  to  customers,  was  admirably  stated 
by  the  court  in  the  very  recent  case  (1871)  of  Tyler  v.  Beach er,  44  Vt.  656,  on  a 
petition  to  condemn  land  for  a  grist  mill.  "  As  to  railroads,  in  respect  to  the  public. 
all  persons  have  the  right  to  ride,  and  to  have  property  carried  on  them  in  the 
vehicles  of  the  road,  upon  payment  of  a  common  charge.  As  to  turnpikes,  all 
persons  may  pass  and  carry  on  them  in  their  own  vehicles,  upon  payment  of  a  com- 
mon toll.  All  who  have  occasion  may  use  ways.  School-houses  are  instruments  of 
a  system  that  is  maintained  for  all  the  people  of  the  State.  The  public,  or  some 
essential  part  of  it,  has  the  right  to  have,  and  has,  to  some  extent,  the  actual  use  and 
enjoyment  of  all  these  ;  and  the  takers  of  property  for  them  are,  in  some  sense,  agents 
for  the  State  in,  taking,  and  trustees  for  the  public  in  holding  the  property  taken,  al- 
though they  go  into  the  enterprises,  in  some  caises,  merely  for  private  gain.  In  this 
case  the  public  would  not  take  through  the  petitioner,  but  the  petitioner  would  take  for 
himself;  and  the  petitioner  would  not  hold  as  a  trustee  for  the  public,  but  only  for 
himself.  It  is  to  be  considered  that  this  taking  would  be  for  the  public  benefit,  for 
such  is  the  effect  of  the  finding  [in  the  court  below] ;  but  the  benefit  would  not  arise 
out  of  any  use  the  public  would  acquire  by  the  taking,  but  out  of  the  better  use  the  pet  i- 
29 


450       PROPERTY  NOT  TO  BE  TAKEN  FOR  PRIVATE  USE. 

plied  to  the  private  use  of  another.*  So,  again,  in  the  Court  of 
Errors,  Mr.  Senator  Tracy  said,  that  the  words  "  private  prop- 
erty shall  not  be  taken  for  public  use  without  just  compensa- 
tion, should  be  construed  as  equivalent  to  a  constitutional 
declaration  that  private  property,  without  the  consent  of  the 

*  In  the  matter  of  Albany  street,  11  "Wend,  to  take  more  of  the  land  of  an  individual  for 
161.  In  this  case  it  was  held  that  the  corpo-  the  purpose  of  a  street  than  was  actually  re- 
ration  of  the  city  of  New  York  had  no  power  quired  for  that  purpose. 

tloner  would  make  of  the  property  taken  than  the  respondents  would.'1''  This  seems  to 
state  very  accurately  the  distinction  between  a  "use  "by  the  public,  and  a  mere 
"  benefit"  to  the  public  from  somebody  else's  use— a  distinction  which  some  courts 
have  overlooked.  Clearly,  under  the  constitutional  provision,  the  public  must,  in 
some  sense,  use  the  property  taken.  See  also  the  observations  of  the  court  in  Coster 
v.  Tide-water  Co.  3  C.  E.  Green,  pp.  63  to  65,  66,  68 ;  and  in  Sadler  v.  Langham,  34 
Ala.  pp.  323  to  326,  330. 

From  the  cases  above  cited  in  this  note,  it  is  beyond  dispute  that  the  use  is 
public :  (1.)  Where  the  object  is  purely  governmental,  as  a  fort,  a  public  school- 
house.  Under  this  head  would  be  included  court  houses,  state  houses,  and  other 
governmental  buildings.  Here,  as  the  use  is  for  the  State  or  United  States,  in 
its  corporate  capacity,  every  member  of  the  body  politic  has  a  legal  interest  and  a 
legal  right.  (2.)  In  the  case  of  highways,  turnpikes,  bridges,  canals,  railroads, 
ferries,  and  all  other  such  public  means  of  travel  and  of  transport.  In  all  the  in- 
stances of  this  class,  the  use  is  legally  for  the  entire  public ;  the  common  interest 
and  common  right  to  the  enjoyment  of  the  use  exist  in  the  whole  people  of  the 
State.  It  is  a  complete  misconception  of  legal  principles,  and  a  perversion  of  legal 
terms,  to  say  of  such  a  use,  that.it  is  for  the  benefit  solely  of  some  particular  locality, 
because  the  inhabitants  of  that  locality  most  frequently  avail  themselves  of  its  ad- 
vantages. The  very  essence  of  such  a  use  is  that  every  member  of  the  State  has  an 
equal  right  to  enjoy  the  use.  (3.)  There  is  a  third  class  in  which  the  use  is  restricted 
to  a  particular  locality  or  community,  and  in  which  all  the  members  of  such  com- 
munity, or  inhabitants  of  such  locality,  are  necessarily  interested  in  and  benefited  by 
the  use — that  is,  by  what  makes  the  use  public,  rather  than  private.  And  it  seems 
to  us  that  the  feature  in  all  the  instances  of  this  class  which  has  this  public  charac- 
ter, and  in  which  all  the  members  of  the  special  community  are  thus  necessarily 
interested,  is  the  promotion  of  the  common  health.  In  this  class  fall  the  cases  which 
uphold  the  swamp  draining,  the  sewerage  of  cities,  the  removal  of  dams  and  stag- 
nant waters,  and  the  like.  Here  also  belongs  the  case  of  water  supply  for  cities, 
water  being  a  sanitary  necessity  to  the  whole  community  as  much  as  air. 

Tliere  are  several  cases  cited  above,  most  of  them  relating  to  the  "flowage"  and 
"  mill  "  statutes,  which  certainly  do  not  fall  within  either  of  these  classes.  The  doc- 
trine of  these  cases  is  not  universally  accepted  ;  able  courts  deny  its  correctness ;  it 
cannot  be  sustained  on  principle,  unless  we  adopt  the  logical  reasoning  and  con- 
clusions of  the  Connecticut  decision  cited  above ;  and  to  do  this  is  to  sweep  away 
the  constitutional  safeguards,  and  to  place  private  property  at  the  mercy  of  the 
Legislature  for  uses  and  purposes  which  are  as  truly  private  as  the  lawful  business  of 
every  citizen. 

For  further  discussion  of  this  topic,  see  "  Taxation." 


SPECIAL  CASES.  451 

owner,  shall  be  taken  only  for  the  public  use,  and  then  only 
upon  a  just  compensation."  This  accords  with  the  principles 
in  regard  to  the  nature  of  a  law,  which  we  have  already  dis- 
cussed at  length.  An  appropriation  of  private  property  for 
private  purposes,  is  a  mere  abuse  of  the  powers  of  legislation. 
An  act  framed  for  such  purposes  has  not  the  character  of  a 
law,  and  is  prohibited  by  the  general  ideas  which  define  and 
limit  the  proper  functions  of  the  Legislature.  Indeed,  in  the 
same  State,  it  has  been  expressly  decided  that  a  statute  which 
authorizes  the  transfer  of  one  man's  property  to  another,  with- 
out the  owner's  consent,  is  unconstitutional  and  void,  although 

'  /  O 

compensation  be  made.  So,  a  city  corporation  cannot,  for  the 
purpose  of  making  a  street,  take  the  whole  of  a  lot,  if  a  por- 
tion only  be  wanted  for  the  object ;  and  the  act  under  which 
the  proceedings  are  had  must  be  read  as  if  containing  a  proviso 
that  the  owner's  consent  as  to  the  part  not  actually  needed — 
otherwise  the  act  is  unconstitutional  and  void,  f 

Having  thus  considered  the  nature  of  the  power  of  eminent 
domain  so  far  as  it  is  intended  to  be  limited  by  the  constitu- 
tional restriction,  before  proceeding  to  the  second  head — that 
of  delegation  of  the  power — some  other  decisions  in  regard  to 
this  constitutional  clause,  growing  out  of  circumstances  peculiar 
to  the  several  States  of  the  Union,  may  be  noticed  here.  In 
New  York  it  has  been  held  that  the  statutory  provisions  which 
authorize  towns  to  determine  when  cattle  may  run  at  large  on 
highways,  are  unconstitutional  and  void,  inasmuch  as  they 
authorize  the  appropriation  without  compensation  of  the 
grass  and  herbage  on  the  track  of  highways,  which,  subject 
to  the  public  right  of  way,  are  the  property  of  private  pro- 
prietors.;); 

In  the  same  State,  the  general  highway  act  giving  to  com- 
missioners of  highways  the  power  to  lay  out  new  roads  through 
wild  or  unimproved  lands,  without  the  consent  of  the  owner  of 
the  lands  taken,  is  pronounced  unconstitutional  and  void,  be- 

*  Bloodgood  v.  The  Mohawk  and  Hudson  Taylor  v.  Porter,  4  Hill,  140  (ante)  •  Beekman 

R.  R.  Co.     See  18  Wend.  9  and  59;  see,  also,  v.  Saratoga  and  Schy.  R.  R.  Co.  3  Paige,  73 ; 

matter  of  John  and  Cherry  streets,  19  Wend,  and  Varick  v.  Smith,  5  Paige,  159. 
659,  and  Varick  v.  Smith,  5  Paige,  137.  \  Tonawanda  Railroad  Co.  v.  Munger,  5 

f  Embury  v.  Conner,   3   Corns.   511,  and  Denio,  255. 
cases  cited.     The  same  doctrine  is  asserted  in 


452  DELEGATION   OF  THE   POWER. 

cause  no  compensation  is  made  to  the  proprietors;  and  has  been 
so  recently  held,  although  the  power  has  been  sanctioned  by 
statutes,  and  exercised  nearly  ever  since  the  State  had  an  exist- 
ence or  a  government.* 

In  Pennsylvania,  it  has  been  the  invariable  usage,  from  the 
first  settlement  of  the  commonwealth  down  to  the  present  day, 
to  reserve  six  acres  out  of  every  hundred  for  roads ;  and  it  is 
held  that  this  six  per  cent,  belongs  to  the  State,  and  she  may 
constitutionally  appropriate  it  to  the  use  for  which  it  was 
meant  without  compensation,  f  In  the  same  State  it  has  been 
held,  in  regard  to  turnpikes  or  plank-roads,  that  a  person 
on  whose  land  such  a  road  is  located  can  recover  damages  to 

O 

an  amount  which,  if  added  to  the  present  value  of  his  laud, 
would  make  it  worth  as  much  as  it  was  before  the  road  was 
made.if 

An  act  of  the  Legislature  of  Massachusetts  incorporated  an 
aqueduct  company  for  the  purpose  of  supplying  a  village  with 
pure  water,  with  authority  to  take  springs  ;  but  the  act  did  not 
in  terms  require  the  corporation  to  supply,  on  reasonable  terms, 
all  persons  applying  for  water.  It  was  insisted  that  this  act 
wras  unconstitutional,  on  the  ground  that  it  authorized  the 
taking  of  private  property  for  a  use  not  public.  But  it  was 
held  good,  on  the  ground  that  if  such  a  corporation  should 
undertake,  capriciously  and  oppressively,  to  enhance  the  value 
of  certain  estates  by  furnishing  them  with  a  supply  of  water, 
and  depreciate  that  of  others  by  refusing  them,  it  would  be  a 
plain  abuse  of  their  franchise.  || 

Delegation  of  the  Power  of  Eminent  Domain.(a] — Hav- 
ing thus  attempted  to  define  the  limits  of  the  legislative  power 

*  Wallace  v.  Karlenowefski,  19  Barb.  118 ;  \  Plank  Road  Co.  v.  Thomas,  20  Penn.  R. 

Gould  v.  Glass,  76.  179.  93. 

•j-  Plank  Road   Company   v.  Thomas,  20  ||  Lumbard  v.  Stearns,  4  Cush.  60. 

Penn.  R.  93. 


(a)  Who  can  take. — It  is  settled  by  the  uniform  course  of  decision  that  the 
power  to  take  may  be  delegated  to  corporations  or  to  individuals.  But  the  intent 
to  delegate  the  power  must  clearly  appear.  Thus,  where  a  statute  authorized  cer- 
tain officers  to  "  provide  "  a  small-pox  hospital,  this  was  held  not  to  authorize  a  con- 
demnation of  private  property.  Markham  v.  Brown,  37  Geo.  277.  And  a  power  to 
condemn  land  for  "  public  grounds,  squares,  streets,  alleys  or  highways  "  does  not 


DELEGATION  OF   THE   POWER.  453 

in  regard  to  private  property,  the  next  important  question 
arises,  by  whom  the  power  must  be  exercised.  It  has  been  in- 
sisted that  the  power  of  taking  property  by  virtue  of  the  right 
of  eminent  domain,  must  be  exercised  by  the  State  directly, 
without  the  intervention  of  any  intermediate  agents ;  but  all 
doubts  in  regard  to  this  are  now  put  at  rest,  and  the  contrary 
doctrine  firmly  established.  So,  it  has  been  decided  in  New 
York,  that  the  right  of  eminent  domain  may  be  exercised  in 
regard  to  railroads  and  other  similar  public  works,  either  di- 
rectly or  through  the  medium  of  corporations  or  joint-stock 
companies ;  while  at  the  same  time  it  has  been  held,  as  we 
shall  see  hereafter,  that  statutes  authorizing  the  appropriation, 
in  order  to  be  constitutional  and  valid,  must  make  provision  for 
the  assessment  and  payment  of  the  damages  of  the  land  owner.* 
"In  all  the  cases  where  individuals  or  corporate  bodies  are 
authorized  to  take  private  property  for  the  purpose  of  making 
highways,  turnpike  roads,  and  canals ;  of  erecting  and  con- 
structing wharves  and  basins ;  of  establishing  ferries ;  of  drain- 
ing swamps  and  marshes,  and  of  bringing  water  to  cities  and 
villages,  the  object  of  the  legislative  grant  of  power  is  the  pub- 
lic benefit  derived  from  the  contemplated  improvement,  whether 
such  improvement  is  to  be  effected  directly  by  the  agents  of 
the  government,  or  through  the  medium  of  corporate  bodies,  or 
of  individual  enterprise."f  In  Connecticut  it  has  been  said, 
"  It  is  now  established  by  the  current  of  decisions,  that  the 
property  of  individuals  taken  by  railroad  companies  and  simi- 
lar corporations  under  their  charters  is,  from  the  public  bene- 
fits resulting  therefrom,  to  be  deemed  to  be  taken  for  the  pub- 

*  Bloodgood  v.  Mohawk  and  Hudson  R.  f  Beekman  v.  The  Saratoga   and  Sch'y 

R.  Co.  18  Wend.  9 ;  s.  c.  in  error,  18   Wend.     R.  R.  Co.  3  Paige,  75,  per  Walworth,  Ch. 
17,  78. 

include  the  power  to  condemn  for  a  city  prison.  East  St.  Louis  v.  St.  John,  47  111. 
463. 

As  the  Legislature  may  itself  lay  out  roads,  it  may  do  so  through  commissioners. 
Matter  of  Central  Park,  51  Barb.  277. 

As  to  whether  the  United  States  can  exercise  the  power  of  eminent  domain  within 
the  territory  of  the  States,  and  as  to  whether  the  power  can  be  exercised  by  the 
State  courts  in  its  behalf,  see  Gilmer  v.  Lime  Point,  18  Cal.  229  ;  Redall  v.  Bryan,  14 
Md.  444 ;  Trombly  v.  Humphrey,  23  Mich.  471 ;  Burt  v.  Merchants'  Ins.  Co.  106 
Mass.  356. 


451  WHEN  PROPERTY   DEEMED   TAKEN. 

lie  use  within  the  constitutional  provision  on  that  subject."  * 
In  Michigan,  it  has  been  said,  "  In  the  second  of  the  articles  of 
compact,  the  ordinance  of  1787,  it  is  among  other  things  pro- 
vided that  no  man  shall  be  deprived  of  his  liberty  or  property, 
but  by  the  judgment  of  his  peers  or  the  law  of  the  land  ;  or 
should  the  public  exigencies  make  it  necessary,  for  the  com- 
mon preservation,  to  take  any  person's  property,  or  to  demand 
his  particular  services,  full  compensation  shall  be  made  for  the 
same.  This  provision  was  evidently  framed  with  a  jealous  eye 
to  arbitrary  executive  power,  and  was  not  designed  to  restrict 
judicial  or  legislative  authority,  but  rather  to  limit  and  confine 
the  power  over  persons  and  property  to  them ;"  and  under  the 
above  clause  it  was  held,  that  the  territorial  legislature  could 
lawfully  authorize  a  railroad  corporation  to  take  private  prop- 
erty for  their  use ;  in  other  words,  that  the  power  of  eminent 
domain  could  be  delegated.f 

In  Tennessee,  it  has  been  held  that  the  taking  of  the  land 
of  an  individual  for  the  erection  of  a  grist-mill  thereon,  at  which 
all  the  inhabitants  of  the  neighborhood  should  be  entitled  to 
have  their  grinding  done  in  turn,  and  at  fixed  rates,  was  such  a 
public  use  as  to  authorize  the  exercise  of  the  right  of  eminent 
domain,  though  the  whole  property  and  profits  of  the  mill  were 
to  belong  to  the  individual  proprietors, — on  the  ground  of  the 
public  utility  of  having  such  a  mill,  where  each  individual  had 
an  equal  right  to  be  served.  J 

WJien  Property  is  Deemed  to  be  Taken,  (a) — The  next  prin- 

*  Bradley  v.  N.  Y.  and  N.  H.  R.  R.  Co  ing  the  same.  Swan  v.  Williams,  2  Michigan, 

21  Conn.  294.  427. 

f  In  this  case,  it  was  also  held  that  it  was  \  Harding  v.  Goodlet,  3  Yerger,  41.  In 

no  objection  to  the  charter  of  a  railroad,  in  a  New  Hampshire  it  has  been  said  by  the  Su- 

constitutional  point  of  view,  that  it  did  not  preme  Court  of  that  State,  that  the  power  of 

provide  for  notice  to  the  owners  of  the  lands,  eminent  domain  may  be  exercised  either 

of  proceedings  to  assess  the  damages  for  tak-  through  the  action  of  general  laws  or  of  judi- 
cial tribunals.  Bachus  v.  Lebanon,  11 N.  H.  19. 

(a)  What  Constitutes  a  Talcing  of  Private  Property  for  Public  Use. — Under  certain 
circumstances  by  the  exercise  of  the  police  powers  of  the  government,  private  prop- 
erty may  be  seized,  confiscated,  destroyed,  interfered  with,  regulated  or  injured,  and 
these  acts  will  not  constitute  a  taking  for  public  use  within  the  meaning  of  the  Con- 
stitution. Such  governmental  acts  are  not  done  by  virtue  of  the  power  of  eminent 
domain.  Some  illustrations  of  this  general  principle  are  given.  Ditches  and  drains 
may  be  required  to  be  made  under  the  police  power.  Sessions  v.  Crunkilton,  20 
Ohio  N.  S.  349 ;  O'Reiley  v.  Kankakee  &c.  Co.  32  Ind.  169,  191.  A  law  for  the 


WHEN  PROPERTY  DEEMED  TAKEN.  455 

cipal  subject  of  inquiry  in  regard  to  the  guaranty  of  private  prop- 
erty, is  as  to  what  taking  or  appropriation  the  limitation  applies. 

seizure  and  forfeiture  of  bread  illegally  baked  is  valid.  Guillotte  v.  New  Orleans, 
12  La.  Ann.  432.  And  a  law  for  the  killing  of  dogs  found  abroad  without  a  collar. 
Morey  v.  Brown,  42  N.  H.  873.  It  has  been  held  in  California  that  the  necessary 
destruction  of  private  property  by  a  public  officer  to  stay  a  conflagration,  is  not  a 
taking  for  public  use.  Sorocco  v.  Gearry,  3  Cal.  69.  And  the  same  was  held  in 
Minnesota  when  the  destruction  was  not  by  authority  of  law.  McDonald  v.  Red 
Wing,  13  Minn.  38;  and  see  Reynolds  v.  Schultz,  4  Robt.  (N.  Y.)  282. 

For  cases  where  statutes  for  the  confiscation  of  liquors  have  been  sustained,  see 
State  v.  Brennan's  Liquors,  25  Conn.  278 ;  Oviatt  v.  Pond,  29  Conn.  479. 

Indirect  and  Consequential  Injury. — For  an  exhaustive  discussion  of  this  subject, 
and  a  review  of  the  authorities,  see  the  recent  case  of  Eaton  v.  Boston  &c.  R.  R.  51 
N.  H.  504,  511.  It  is  the  settled  doctrine  of  the  States  that  under  the  general  pro- 
vision common  to  most  of  the  Constitutions,  and  in  the  absence  of  any  different  stat- 
utory rule,  there  must  be  some  actual,  direct,  physical  interference  with  the  property 
or  some  part  thereof,  to  constitute  the  "  taking  "  spoken  of  in  the  Constitutions.  It 
is  not  necessary  that  the  owner  should  be  divested  of  all  estate  in  the  whole  or  in 
any  part  of  the  particular  piece  of  property ;  nor  that  exclusive  possession  of  the 
whole  nor  of  any  part  thereof  should  be  acquired  as  against  him  ;  but  there  must  be 
some  direct  and  physical  interference  with  some  part  of  the  particular  piece  of  prop- 
erty in  question.  As  a  consequence  of  this  doctrine,  indirect  and  consequential 
injuries  to  property,  depreciations  in  value,  and  the  like,  unaccompanied  by  any 
direct  physical  interference,  do  not  constitute  the  taking.  We  shall  see,  however, 
in  the  sequel,  that  if  there  be  the  required  physical  interference  with  some  portion  of 
a  given  piece  of  property — g.  g.,  a  tract  of  land — the  owner  is  entitled,  as  a  part  of  his 
compensation  for  that  taking,  to  damages  for  the  resulting,  consequential  injury  to 
the  rest  of  the  piece  or  tract.  The  cases  now  cited  are  illustrations  of  the  general 
doctrine,  many  of  them  stating  it  at  large  and  discussing  its  extent  and  application. 
It  has  been  held  that  if  the  State  uses  or  diverts  the  waters  of  a  navigable  stream  or 
lake,  or  authorizes  them  to  be  diverted,  a  riparian  proprietor  has  no  right  to  compen- 
sation as  he  has  no  private  interest  or  ownership  in  the  waters  or  in  the  bed  of  the 
stream  or  lake.  Cornmrs.  v.  Withers,  29  Miss.  21 ;  Boston  &  Wor.  R.  R.  v.  Old  Col- 
ony R.  R.  12  Gush.  605.  But  there  are  cases  which  seem  to  be  opposed  to  this  doc- 
trine, and  to  hold  that  the  riparian  owner  is  entitled  under  the  Constitution  to  com- 
pensation. Avery  v.  Fox,  1  Abb.  U.  S.  R.  246 ;  Yates  v.  Milwaukee,  10  Wai.  497. 
If  the  land  of  the  riparian  owner  is  actually  flowed,  this  is  a  taking  notwithstanding 
the  stream  is  a  navigable  and  public  one ;  but  this  rests  upon  a  different  principle 
from  the  cases  last  above  cited,  for  here  the  owner's  land  is  actually  invaded,  and  it 
is  not  a  case  of  mere  interference  with  his  use  of  the  stream  which  belongs  to  the 
public  and  not  to  him.  Pumpelly  v.  Green  Bay  Co.  13  Wai.  166.  A  railroad  run- 
ning along  within  the  lines  of  a  navigable  river  and  below  low  water-mark  upon 
piles,  cut  off  access  to  the  land  of  a  riparian  owner  and  interfered  with  his  use  of  the 
river;  held  not  to  be  a  taking,  and  that  he  was  not  entitled  to  compensation.  Gould 
v.  Hudson  River  R.  R.  6  N.  Y.  522.  Dams  constructed  in  a  stream  which  indirectly 
injured  a  canal,  held  not  to  be  a  "•  taking."  Susquehanna  Canal  Co.  v.  Wright,  9  W. 
&  S.  9;  Monongahela  Nav.  Co.  v.  Coon,  6  W.  &  S.  101. 

Injury  to  the  business  of  one  turnpike,  or  such  like  means  of  travel,  by  the  con- 


456  VHEN  PROPERTY  DEEMED   TAKEN. 

It  seems  to  be  settled  that,  to  entitle  the  owner  to  protec- 
tion under  this  clause,  the  property  must  be  actually  taken,  in 

struction  of  another  route,  such  as  a  railroad,  another  turnpike,  or  the  like,  does  not 
entitle  the  injured  parties  to  compensation, — there  is  no  "  taking."  Troy  &c.  R.  R. 
T.  Northern  Turnp.  Co.  16  Barb.  100 ;  La  Payette  Plank  R.  v.  New  Albany  &c.  R.  R. 
13  Ind.  90;  Harvey  v.  Lackawana  &c.  R.  R.  47  Penn.  St.  428. 

Laying  out  a  highway  along  a  proprietor's  line,  and  thus  making  it  necessary 
that  he  should  construct  and  maintain  the  whole  line  fence,  does  not  entitle  him  to 
compensation  for  such  additional  expense.  Kennett's  Petition,  4  Fost.  139;  Eddings 
v.  Seabrook,  12  Rich  (Law.)  504. 

It  was  held  in  Arkansas  that  granting  and  establishing  a  ferry  landing  within  the 
limits  of  a  highway  where  it  abutted  on  the  stream,  was  not  a  "  taking  "  as  against 
the  abutting  owner  of  the  fee  of  the  highway.  Murray  v.  Menefee,  20  Ark.  561.  But 
this  decision  cannot  be  reconciled  with  numerous  others  which  hold  that  the  impo- 
sition of  an  additional  easement  upon  the  soil  of  a  highway  is  a  "  taking  "  as  against 
the  owner  of  the  fee.  See  this  subject  infra  in  this  note. 

Consequential  injury  to  a  fishery  gives  no  claim  to  compensation.  Tinicum  Fish- 
ery Co.  v.  Carter,  61  Penn.  St.  21.  The  annexation  of  a  country  district  to  a  city, 
thereby  imposing  an  increased  burden  of  taxation  upon  the  inhabitants  of  that  dis- 
trict, is  in  no  sense  a  "  taking."  Wade  v.  Richmond,  18  Gratt.  583.  It  seems  that 
the  owner  of  a  way  is  not  entitled  to  compensation  for  the  establishment  of  a  railroad 
over  it,  although  he  is  inconvenienced  thereby.  Boston  &  Wore.  R.  R.  v.  Old  Colony 
R.  R.  12  Gush.  605. 

Injuries  caused  by  a  change  of  grade  of  streets  do  not  constitute  a  "  taking  "  so 
as  to  require  compensation.  Marcy  v.  Indianapolis,  17  Ind.  267. 

For  a  statement  and  discussion  of  the  general  rule,  see  In  re  Mt.  Washington  R.  R. 
35  N.  H.  134;  Alexander  v.  Milwaukee,  16  Wise.  247;  Arnold  v.  Hudson  Riv.  R.  R. 
49  Barb.  108.  A  fortiori  remote  and  speculative  injuries  are  not  entitled  to  be  com- 
pensated for,  and  remote  and  speculative  damages  are  not  allowed.  Swett  v.  Troy, 
62  Barb.  630;  Spangler's  Appeal,  64  Penn.  St.  387;  Koch  v.  Williamsport  &c.  Co.  65 
Penn.  St.  288.  As  an  illustration,  when  N.'s  land  is  taken  for  a  public  wharf  near 
his  private  wharf,  the  loss  of  his  profits  cannot  be  considered.  Fuller  v.  Edings,  11 
Rich.  (Law.)  239;  see  Boston  &  Wor.  R.  R.  v.  Old  Colony  R.  R.  12  Cush.  605 ;  Rich- 
mond &c.  Co.  v.  Rogers,  1  Duv.  (Ky.)  135  (injury  to  a  ferry). 

It  was  held  in  Vermont  that  where  a  railroad  constructed  a  high  embankment 
upon  its  own  land  adjoining  to  the  land  of  a  private  proprietor,  which  embankment 
interfered  with  the  access  of  the  latter  to  his  house  and  lot,  such  proprietor  was  not 
entitled  to  compensation  under  the  Constitution,  and  was  without  remedy  in  any. 
form  of  judicial  proceeding.  Richardson  v.  Vt  Cent.  R.  R  25  Vt.  465.  This  is  un- 
doubtedly in  accordance  with  the  generally  received  doctrine.  There  are  decisions, 
however,  in  some  of  the  States,  which  are  not  in  entire  harmony  with  this  doctrine, 
and  which  secure  some  remedy  to  the  proprietor  in  analogous  cases.  Thus  in  Indi- 
ana, although  the  fee  of  public  highways  or  streets  is  in  the  public  and  not  in  the 
abuttors,  it  is  held  that  the  abuttor  has  a  legal  right,  in  the  nature  of  an  easement, 
to  have  free  access  to  the  highway  from  his  abutting  land.  If  this  right  is  interfered 
with  either  by  private  persons  acting  without  right,  or  by  railroad  and  other  corpo- 
rations acting  under  authority  of  the  State,  the  abuttor  has  a  remedy  for  his  damages 
by  action.  But  even  here  it  is  said  the  act  of  a  railroad  or  other  corporation  in  build- 


WHEN  PROPERTY  DEEMED   TAKEN.  457 

the  physical  sense  of  the  word,  and  that  the  proprietor  is  not 
entitled  to  claim  remuneration  for  indirect  or  consequential 

ing  an  embankment  or  the  like  in  the  highway,  is  not  a  u taking"  which  entitles  the 
abuttor  to  compensation  under  the  Constitution,  but  only  an  invasion  of  a  right 
which  entitles  him  to  damages  in  an  ordinary  action.  Haynes  v.  Thomas,  7  Ind.  33 ; 
Protzman  v.  Indianapolis  &c.  K.  R.  9  Ind.  467;  Evansville  &c.  R.  R.  v.  Dick,  9  Ind. 
433 ;  New  Albany  &c.  R.  R.  v.  O'Dailey,  13  Ind.  353.  The  same  rule  prevails  in 
Ohio.  Crawford  v.  Delaware,  7  Ohio,  N.  S.  459 ;  Street  R.  R.  v.  Cumminsville,  14 
Ohio,  N.  S.  523.  In  New  Jersey  it  was  held  in  a  well  considered  case  that  where  a 
person  or  corporation  is  not  acting  solely  for  the  public  good,'  but  in  part  for  private 
gain — e.  g.,  a  railroad — and  necessarily  does  some  consequential  injury  to  the  lands 
of  a  proprietor  although  none  of  his  lands  are  taken,  such  proprietor  may  recover  his 
damages  by  action,  although  not  entitled  to  "  compensation  "  as  for  a  taking.  Tins- 
man  v.  Belvidere  &c.  R.  R.  2  Dutch.  148;  see  also  Glover  v.  Powell,  2  Stockt.  (N.  J.) 
211 ;  Plum  v.  Morris  Canal  Co.  Ib.  256.  In  Missouri,  also,  it  is  held  that  obstruction 
to  a  highway  cannot  be  legally  authorized  without  compensation  to  the  abuttor, 
although  not  the  owner  of  the  fee.  Lackland  v.  North  Mo.  R.  R.  31  Mo.  180;  see 
also,  McKeen  v.  Delaware  &c.  Co.  49  Penn.  St.  424. 

In  some  States  compensation  is  required  by  statute  to  be  made  for  "  injuriously 
affecting"  as  well  as  for  "taking."  See  Heyneman  v.  Blake,  19  Cal.  579. 

The  parties  exercising  the  right  of  eminent  domain,  or  carrying  out  the  improve- 
ment under  their  authority,  are  liable  for  consequential  damages  arising  from  negli- 
gence or  want  of  skill  in  constructing  the  works.  Bellinger  v.  N.  Y.  Cent.  R.  R.  23 
N.  Y.  42 ;  N.  Y.  &  Erie  R.  R.  v.  Young,  33  Penn.  St.  175. 

Illustrations  of  "  taking.'1'1 — In  the  following  instances  property  is  "  taken,"  within 
the  meaning  of  the  Constitution.  Subjecting  land  to  a  perpetual  flowage,  even 
though  on  a  navigable  stream.  Pumpelly  v.  Green  Bay  Co.  13  Wai.  166;  depriving 
owner  of  the  ordinary  use  of  his  land.  Hooker  v.  New  Haven  &c.  Co.  14  Conn.  146. 
Taking  or  injuring  water  front  on  a  stream  not  navigable.  Varick  v.  Smith,  9  Paige, 
547.  Taking  an  exclusive  wharfage  right  on  tide  water.  Murray  v.  Sharp.  1  Bosw. 
539.  Appropriating  the  herbage  in  highways  which  belongs  to  the  abuttors.  Tona- 
wanda  R.  R.  v.  Munger,  5  Denio,  255 ;  Woodruff  v.  Neal,  28  Conn.  165.  Compelling 
owner  to  do  acts  on  his  property  involving  expense  or  injury  to  his  property,  e.  g , 
compelling  him  to  open  a  fish  way  in  a  private  dam.  State  v.  Glen,  7  Jones  (Law), 
321 ;  or  compelling  an  abuttor  on  a  private  way  to  grade  the  same.  Morse  v.  Stocker, 
1  Allen,  150. 

Detention  by  government  of  a  sum  awarded  by  the  Court  of  Claims  is  a  taking  of 
private  property  for  public  use.  Brown  v.  United  States,  6  Ct.  of  Claims  (Nott  & 
Huntington)  R.  171.  Whether  seizure  under  the  abandoned  or  captured  property 
act  is  a  taking.  See  Wylie's  Case,  6  Ib.  295.  The  emancipation  of  slaves  was  held 
in  Kentucky  to  be  a  taking  for  public  use.  Corbin  v.  Marsh,  2  Duv.  193. 

The  general  rule  was  stated  by  the  court  in  Pumpelly  v.  Green  Bay  Co.  13  Wall. 
166,  that  property  need  not  be  absolutely  tulten  in  the  narrowest  sense  of  that  word ; 
there  may  be  such  serious  interruption  to  the  common  and  necessary  use  of  it  as  will 
be  equivalent  to  a  taking.  "  Where  real  estate  is  actually  invaded  by  superinduced 
additions  of  water,  earth,  sand,  or  other  material,  or  by  having  any  artificial  structure 
placed  upon  it,  so  as  to  effectually  destroy  or  impair  its  usefulness,  it  is  a  taking 
within  the  meaning  of  the  Constitution."  Per  Miller,  J.  p.  181.  See  Redall  v.  Bryan, 


458  WHEN  PROPERTY   DEEMED  TAKEN. 

damage,  no  matter  how  serious  or  how  clearly  and  unquestiona- 
bly resulting  from  the  exercise  of  the  power  of  eminent  domain. 
This  rule  has  been  repeatedly  declared  in  many  of  the  States  of 


14  Md.  444,  that  laying  an  aqueduct  over  a  person's  land  is  a  "  taking."  See  par- 
ticularly the  recent  case  of  Eaton  v.  Boston  &c.  R.  R.  51  N.  H.  504,  for  a  most 
exhaustive  discussion  and  analysis  of  the  authorities.  A  railroad  removed  a  natural 
ridge  which  rose  between  Eaton's  farm  and  a  river,  and  protected  the  farm  from 
overflow  during  freshets.  In  consequence  of  this  removal,  the  farm  was  sometimes 
overflowed  during  freshets,  and  sand,  gravel,  and  stones  were  brought  on  to  it.  This 
was  held  to  be  a  "  taking."  The  whole  opinion  is  a  grateful  and  refreshing  recogni- 
tion of  the  rights  of  private  owners  of  property. 

Imposing  Additional  Easements. — If  the  soil  of  a  proprietor  which  is  already  bur- 
dened with  some  public  easement,  is  subjected  by  authority  of  the  State  to  an  addi- 
tional and  different  public  easement,  there  is  a  taking  for  public  use,  and  he  is  en- 
titled to  compensation.  This  general  doctrine  is  universally  admitted.  The  diffi- 
culty in  applying  it  has  arisen  not  from  any  doubt  as  to  the  rule  itself,  but  from  a 
difference  in  opinion  as  to  what  constitutes  an  additional  public  easement  and  bur- 
den. Thus,  if  a  person's  soil  is  subject  to  the  easement  of  a  public  highway,  does 
this  include  every  other  and  new  means  of  transit,  or  is  every  such  new  method  an 
additional  burden  not  embraced  within  the  legal  public  right  and  use  of  a  highway  ? 
Courts  have  not  been  unanimous  in  answering  this  particular  question.  We  shall 
arrange  the  cases  into  classes. 

A  public  market  cannot  be  authorized  in  a  street  without  compensation  to  the 
abuttors  who  own  the  fee.  State  v.  Laverack,  5  Vroom  (N.  J.)  201. 

Turnpikes,  etc. — Changing  an  ordinary  highway  into  a  plank-road  or  turnpike  im- 
poses no  additional  easement,  and  does  not  entitle  the  abuttors  to  compensation 
when  they  own  the  fee.  Wright  v.  Carter,  3  Dutcher,  76 ;  Douglas  v.  Boonsboro' 
Tump.  Co.  22  Md.  219;  Benedict  v.  Goit,  3  Barb.  459;  Commonwealth  v.  Wilkenson, 
16  Pick.  175;  Chagrin  Falls  &c.  Plank  R.  Co.  v.  Cane,  2  Ohio,  N.  S.  419;  but  contra, 
Williams  v.  Natural  Bridge  Plank  R.  Co.  21  Mo.  580. 

Steam  Railroads  in  Streets. — Steam  railroads  laid  in  streets  and  highways  are  an 
additional  public  burden  and  easement,  and  abuttors  who  own  the  tee  of  the  way 
are  entitled  to  compensation.  Williams  v.  N.  Y.  Cent.  R.  R.  16  N.  Y.  97 ;  Carpenter 
v.  Oswego  &c.  R.  R.  24  N.  Y.  655 ;  Mahon  v.  K  Y.  Cent.  R.  R.  24  N.  Y.  658 ;  Wager 
v.  Troy  &c.  R.  R.  25  N.  Y.  526 ;  Pres.  Soc.  v.  Auburn  &c.  R.  R.  3  Hill,  567 ;  Ford  v. 
Chicago  &c-.  R.  R.  14  Wise.  609;  Pomeroy  v.  Chicago  &c.  R.  R.  16  Wise.  640;  Schur- 
meier  v.  St.  Paul  &c.  R.  R.  10  Minn.  82;  Gray  v.  First  Division  &c.  13  Minn.  315; 
Imlay  v.  Union  Branch  R.  R.  26  Conn.  249 ;  Jersey  City  &c.  R.  R.  y.  Jersey  City  &c.- 
R.  R.  20  K  J.  Ch.  62,  67.  Contra,  such  railroad  is  not  an  additional  burden.  Morris 
&  Essex  R.  R.  v.  Newark,  2  Stockt.  352 ;  Snyder  v.  Penn.  R.  R.  55  Penn.  St.  340 ; 
Commonwealth  v.  Erie  &c.  R.  R.  27  Penu.  St.  339 ;  Matter  of  Philadelphia  &c.  R.  R. 
6  Whart.  25;  Wolfe  v.  Covington  &c.  R.  R.  15  B.  Mon.  404. 

Horse  Railroads  in  Streets. — Horse  railroads  laid  in  streets  and  highways  are  an 
additional  public  burden  and  easement,  and  abuttors  who  own  the  fee  are  entitled  to 
compensation.  Craig  v.  Rochester  &c.  R.  R,  39  N.  Y.  404.  Contra,  such  horse  rail- 
roads are  not  a  new  use  or  additional  public  burden.  Elliott  v.  Fairbaven  &c.  R.  R. 
32  Conn.  579 ;  Brooklyn  &c.  R.  R.  v.  Brooklyn  &c.  R.  R.  33  Barb.  420 ;  Brooklyn  &c. 


WHEN  PROPERTY   DEEMED   TAKEN.  459 

the  Union.  So,  in  New  York,  the  consequential  damages  re- 
sulting from  the  raising  of  the  grade  of  a  city  street  sustained 
by  adjacent  proprietors  gives  no  action  against  the  railroad  cor- 
poration, acting  under  the  authority  of  the  Legislature  and 
with  the  consent  of  the  city  government.  *  So,  in  the  same 
State,  in  taking  land  for  railroad  purposes,  the  only  right  of 
the  party  whose  property  is  entered  on  is  to  be  paid  for  the 
land  taken,  and  that  without  any  reference  to  the  fact  that  the 
laud  of  which  he  is  deprived  is  taken  for  the  construction  of  a 
railroad,  and  that  its  use  by  the  railroad  company  may  be  seri- 

*  Radcliff's  Ex'rs  v.  Mayor  &c.  of  Brook-     also,  First  Baptist  Church  v.Utica  n 
lyii,  4  Comstock,   195;  Chapman  v.   Albany     nectady  R.  R.  Co/o  Barb.  313. 
and  Schenectady  R.  R.  Co.  10  Barb.  360;  see  //Tr  >r  _, 


(»*»** 


R.  R.  v.  Coney  Island  R.  R.  35  Barb.  364.     These  New  Y 
overruled  by  Craig  v.  Rochester  &c.  R.  R. 

Where  a  city  or  other  municipality  owns  the  fee  of  the  streets  ancTMgh w ay 
Legislature  may  authorize  horse  or  steam  railroads  to  be  laid  therein  without  com- 
pensation to  the  abuttors  or  to  the  municipality.  Carson  v.  Central  R.  R.  35  Cal. 
325 ;  People  v.  Kerr,  37  Barb.  357 ;  s.  c.  27  N.  Y.  188  (horse  railroads) ;  Clinton  v. 
Cedar  Rapids  R.  R.  24  Iowa  455  (steam  railroad);  Millburn  v.  Cedar  Rapids,  12 
Iowa,  246 ;  Moses  v.  Pittsburg  &c.  R.  R.  21  111.  516  (steam  railroad).  In  Indiana  the 
same  rule  prevails,  the  fee  of  the  streets  being  in  the  public,  but  the  abuttor  may 
maintain  action  for  damages  if  his  access  to  the  street  is  cut  off  or  interrupted.  See 
cases  cited  supra  in  this  note  under  head  "  Consequential  Injuries." 

When  a  canal  company  sells  its  location  to  a  railroad,  this  will  not  be  an  aban- 
donment of  its  easement  entitling  the  original  owner  to  new  compensation  from  the 
railroad  company.  Hatch  v.  Cincinnati  &c.  R.  R.  18  Ohio,  N.  S.  92. 

When  land  is  donated  for  a  particular  purpose,  an  appropriation  of  it  for  a  differ- 
ent public  purpose  would  be  a  "taking."  Price  v.  Thompson,  48  Mo.  361  (laud 
dedicated  for  a  park) ;  Warren  v.  Lyons  City,  22  Iowa,  351  (for  a  public  square). 

Laws  establishing  a  presumption  of  donation  from  long  user  are  not  laws  for  tak- 
ing property.  Burnpus  v.  Miller,  4  Mich.  159. 

When  the  right  is  reserved  to  alter  or  repeal  the  charter  of  a  corporation,  part  of 
its  land  may  be  taken  for  a  street  without  compensation.  Boston  &  Albany  R.  R.  v. 
Greenbush,  5  Lans.  461.  And  a  highway  may  be  laid  across  the  track  of  a  railroad 
corporation  under  such  circumstances  without  compensation,  and  it  may  be  required 
to  make  the  necessary  embankments  at  its  own  expense.  Albany  &c.  R.  R.  v.  Brow- 
nell,  24  N.  Y.  345;  butter  contra,  see  Old  Colony  R.  R.  v.  Plymouth,  14  Gray,  155. 

When  persons  have  been  permitted  by  the  State  to  occupy  and  make  valuable 
improvements  on  public  lands,  their  rights  are  protected  oy  the  Constitution.  Gillan 
v.  Hutchinson,  16  Cal.  153. 

A  statute  authorizing  a  corporation  to  widen  a  navigable  stream  and  to  charge 
tolls  thereon,  is  constitutional.  Bennett's  Branch  Co.'s  Appeal,  65  Penn.  St.  245. 

Whether  abuttors  on  a  private  way  thrown  open  to  the  public  travel,  can  be  com- 
pelled to  grade  it  if  unsafe,  see  Morse  v.  Stocker,  1  Allen,  150. 


460  WHEN   PROPERTY  DEEMED   TAKEN. 

ously  injurious  to  the  rest  of  his  adjacent  property.*  So,  again, 
the  damage  likely  to  result  from  a  road  to  a  mill  on  the  pro- 
prietor's adjacent  land,  is  not  a  subject  of  inquiry,  f  So,  again, 
in  New  York,  a  franchise  may  be  said  to  be  "taken  within  the 
meaning  of  the  constitutional  guarantee  of  private  property, 
when  the  owner  is  deprived  of  the  power  or  means  of  exercis- 
ing it ; "  but  it  is  not  "  taken  "  when  its  emoluments  are  merely 
diminished  by  an  improvement  which  does  not  destroy  or  im- 
pair such  power  or  means.  This  is  on  the  ground  that,  when 
the  public  good  calls  for  new  grants,  it  is  right  they  should  be 
made,  although  they  may  become  rivals  to  pre-existing  estab- 
lishments made  under  legislative  authority.  And  thus  it  has 
been  held,  that  where  a  public  avenue  was  opened  across  a 
stream,  and  nearly  alongside  of  a  toll-bridge,  the  apprehended 
diminution  of  the  tolls  on  the  bridge  is  not  a  grievance  for 
which  the  bridge  proprietors  are  entitled  to  redress,  the  statute 
granting  their  franchise  not  having  conferred  an  exclusive  right ; 
and  it  was  also  held  that,  as  the  proposed  avenue  did  not 
occupy  any  part  of  the  site  of  the  bridge,  but  merely  passed 
over  one  end  thereof,  and  occupied  a  portion  of  the  causeway 
leading  to  it,  the  proprietors  were  not  entitled  to  compensation, 
it  not  appearing  that  the  appropriation  of  the  part  of  the  cause- 
way required  for  the  avenue  would,  of  itself,  diminish  the  travel 
over  the  bridge  or  throw  any  physical  obstacles  in  the  way  of 
crossing  it.J 

So,  in  Pennsylvania,  in  regard  to  taking  private  property 
for  railroads,  it  has  been  decided,  in  making  compensation,  that 
consequential  damages  are  not  to  be  estimated  unless  provided 
for  in  the  act  of  incorporation ;  and  acts  of  incorporation  are 
constitutional,  though  no  provision  be  made  for  such  damage.  || 
So,  in  the  same  State,  it  has  been  held  that,  under  the  con- 
stitutional provision  declaring  that  "  private  property  shall 
not  be  taken  or  applied  to  public  use  without  just  compensation 
being  made "  no  remedy  is  provided  for  damages  done  by 

*  Albany  Northern  Railroad  Company  v.  ||  Monongahela  Navigation  Co.  v.  Coons, 

Lansing,  16  Barb.  68.  6  "W.  &  Serg.  114;  Henry  v.  Pittsburgh  and 

f  Canandaigua  and  Niagara  Falls  R.  R.  Allegheny  Bridge  Co.  8  Watts  <fe  Serg.  85  ; 

Co.  v.  Payne,  16  Barb.  273.  Miffi'n  v.  Railroad  Company,  16  Penn.  193  ; 

J  Matter  of  Hamilton  Avenue,  14  Barb.  Reitenbaugh  v.  Chester  Valley  Railroad  Co. 

405.  21  Penn.  100. 


WHEN    PROPERTY  DEEMED  TAKEN.  461 

cutting  down  the  grade  of  a  street,  although  such  cutting 
down  destroy  a  building  on  adjacent  property.  The  Supreme 
Court,  Gibson,  C.  J.,  delivering  this  opinion,  said  that  they 
grieved  to  say  there  was  no  redress ;  "  the  constitutional 
provision  for  the  case  of  private  property  taken  for  public  use 
extends  not  to  the  case  of  property  injured  or  destroyed."  * 
So,  in  the  same  State,  it  has  been  held  the  Legislature  has  the 
power  to  vacate  or  close  a  public  street  without  the  consent  of 
those  whose  private  interests  may  be  affected  by  it,  and  with- 
out providing  compensation  for  the  injury.  The  value  of 
property  may  be  taken  away  by  closing  the  avenues  which 
lead  to  it ;  but  it  is  a  consequential  loss,  and  must  be  borne  by 
those  who  suffer  it.  f 

So,  in  Connecticut,  it  has  been  decided  that,  to  entitle  a 
person  to  the  assessment  of  damages  in  his  favor  sanctioned  by 
the  laying  out  of  highways,  the  damages  must  be  direct  and 
immediate,  producing  a  legal  injury,  and  not  remote  and  con- 
sequential. Thus  the  loss  of  the  use  of  a  creek,  crossed  by  the 
highway,  for  the  transportation  of  merchandise  in  common 
with  the  public,  is  not  a  damage  for  which  the  claimant  is 
entitled  to  be  indemnified.  \ 

In  Massachusetts  it  has  been  held  that  a  mere  entry  of 
commissioners,  under  an  act  of  the  Legislature,  authorizing 

'  O  /  o 

certain  boundaries  to  be  ascertained,  is  not  unconstitutional 
thoiigh  no  compensation  is  provided  for  the  entry.  No  prop- 
erty is  appropriated.  J 

In  Maine  the  compensation  provided  by  statute  for  damages 
occasioned  by  the  location  and  construction  of  railroads,  has 
been  said  to  extend  only  to  real  estate  or  materials  taken ;  and 
it  has  been  held  that  for  damages  indirectly  resulting  from  the 
legal  acts  of  a  chartered  corporation,  the  law  affords  no 
remedy. ^[  The  true  construction  of  the  provision  has  been 
elaborately  examined  in  the  State;  and  the  Supreme  Court 
has  there  decided,  that  by  tne  taking  of  property  within  the 
scope  of  this  clause,  is  meant  such  an  appropriation  of  it  as 

*  O'Connor  v.  Pittsburgh,  6  Harr.  Penn.  \  Winslow  v.  Gilford,  6  Gushing,  327. 

R.  187.  \  Rogers  v.  Kennebec  and  Portland  Rail- 

t  Paul  v.  Carver,  26  Penn.  223.  road  Co.  35  Maine,  319. 
\  Clark  v.  Saybrook,  21  Conn.  313. 


462  WHEN  PROPERTY  DEEMED   TAKEN. 

deprives  the  owner  of  his  title  or  a  part  of  his  title,  and  that  it 
does  not  prevent  the  Legislature  from  authorizing  acts  operating 
injuriously  to  private  property  and  without  compensation, 
unless  such  property  is  taken  and  appropriated  or  attempted 
to  be  taken  and  appropriated,  for  the  owner.  * 

In  Vermont  too,  the  course  is  to  limit  the  compensation  to 
damages  sustained  by  the  actual  taking  of  property;  all  other 
loss  sustained  by  individuals  comes  under  the  head  of  damnum 
absqiie  iujuria,  or  under  the  head  of  sacrifices  which  individuals 
must  bear  for  the  common  benefit,  f 

To  differ  from,  the  voice  of  so  many  learned  and  sagacious 
magistrates,  may  almost  wear  the  aspect  of  presumption ;  but 
I  cannot  refrain  from  the  expression  of  the  opinion,  that  this 
limitation  of  the  term  talcing  to  the  actual  physical  appropria- 
tion of  property  or  a  divesting  of  the  title  is,  it  seems  to  me, 
far  too  narrow  a  construction  to  answer  the  purposes  of  justice, 
or  to  meet  the  demands  of  an  equal  administration  of  the  great 
powers  of  government. 

The  tendency  under  our  system  is  too  often  to  sacrifice  the 

*  Cushman  v.  Smith,  34  Maine,  247.  plaintiff's     house.     The     stntute     8    and    9 

f  See  Hatch  v.  Vt.  Central  R.  R.  Co.  25  Victoria,  c.  18,  8th  May,  1845,  entitled  "  An 

Vermont,  49,  where  the  subject  is  discussed  act  for  consolidating  in  one  act,  certain  pro- 

in  an  able  opinion  of  Redfield,  J.  visions  usually  inserted  in  acts  authorizing 

For  other  cases  where  private  property  is  the  taking  of  lands  for  undertakings  of  a 

injured  by  the  construction  and  grading  of  public  nature,"  and  commonly  called  the 

highways  and  railways,  when  it  is  not  taken  Land  Clauses  Consolidation  Act,  provides 

within  the  clause,  see  Day  et  al.  v.  Stetson,  8  compensation  for  land  or  any  interest  taken 

Greenl.  365  ;  Callender  v.  Marsh,  1  Pick.  418  ;  or  injuriously  affected  by  the  execution  of 

Canal  Appraisers  v.  The  People,  17  Wend,  public  works  ;  and  the  right  to  compensation 

571;  Susquehanna  Canal  Co.  v.  Wright,  9  extends  to  consequential  damage.  East  and 

Watts  &  Serg.  9.  West  India  Docks  and  Birmingham  Junction 

In  England,  the  disposition  seems  to  be  Railway  v.  Gattke,  3  Man.  &  G.  155 ;  6  Rail- 
to  extend  the  protection  of  private  property  way  Cases,  371.  See  also,  Glover  v.  North 
so  as  to  reach  every  thing  that  injuriously  Staffordshire  Railway  Co.  15  Jur.  673,  20  L. 
affects  it,  as  where  high  embankments  are  J.  Q.  B.  376 ;  whero  lands  held  to  be  in- 
made  in  front  of  adjacent  premises,  or  where  juriously  affected  by  the  proximity  of  the 
annoyance  and  injury  is  caused  by  the  close  railway  and  passage  of  the  trains.  See  also, 
proximity  of  a  railroad,  or  by  the  noise  of  Shelford's  Law  of  Railways,  by  the  Hon. 
its  engines,  and  in  many  other  cases.  Queen  Milo  L.  Bennett,  of  the  Supreme  Court  of 
v.  Eastern  Counties  R.  Co.  10  Ad.  and  El.  Vermont,  where  the  American  cases  are  also 
531 ;  Glover  v.  North  Staff.  R.  Co.  5  Eng.  to  be  found  on  many  subjects  connected  with 
Law  and  Eq.  R.  335.  The  act  of  the  6  and  railroads.  It  is  not  an  agreeable  observation 
7  Will,  iv,  c.  109,  gives  remuneration  to  pro-  to  make,  but  I  believe  it  cannot  be  denied, 
prietors  for  lands  taken,  used,  damaged,  or  th\t  the  protection  afforded  by  the  English 
injuriously  affected,  in  the  construction  of  the  government  to  property,  is  much  more  corn- 
Sheffield  and  Rotherham  Railway  Company;  plete  in  this  respect  than  under  our  system; 
Turner  et  al.  v.  The  Sheffield  and  Rotherham  although  Parliament  claims  to  be  despoticnlly 
Railroad  Co.  10  Mees.  <fc  Wels.  425,  where  supreme,  and  although  we  boast  our  sub- 
held  that  the  company  was  liable  to  make  mission  to  constitutional  restrictions;  so 
compensation  for  dust  and  drifting  from  the  difficult  is  it  to  judge  of  systems  until  their 
railway  station  and  embankment  into  the  practical  operation  is  carefully  observed. 


COMPENSATION.  463 

individual  to  the  community ;  and  it  seems  very  difficult  in 
reason  to  show  why  the  State  should  not  pay  for  property  of 
which  it  destroys  or  impairs  the  value,  as  well  as  for  what  it 
physically  takes.  If  by  reason  of  a  consequential  damage  the 
value  of  real  estate  is  positively  diminished,  it  does  not  appear 
arduous  to  prove  that  in  point  of  fact  the  owner  is  deprived  of 
property,  though  a  particular  piece  of  property  may  not  be 
actually  taken.  Objections  of  the  same  kind  might'  be  urged 
to  our  system  of  assessment  for  local  improvements,  by  which, 
in  too  many  cases,  the  only  compensation  for  real  estate  actually 
taken,  is  in  an  hypothetical  and  imaginary  benefit  conferred. 
It  may  be  true  that  if  the  benefit  conferred  by  an  improvement 
on  adjacent  proprietors  were  not  taken  into  consideration,  some 
inequality  would  result;  but  it  seems  more  conformable  to 
equity,  and  indeed  to  the  language  of  the  constitutional  clause, 
that  an  individual  advantage  should  be  conferred  in  a  few 
cases  on  a  citizen,  than  that  in  many  he  should  be  a  direct  and 
certain  loser,  in  consequence  of  public  improvements. 

But  considerations  of  this  kind  have  been  silenced  by  the 
universal  demand  for  works  tending  to  develop  the  internal 
resources  of  the  country  ;  a  general  disposition'  has  been  felt 
not  to  cramp  these  enterprises  by  a  too  sweeping  or  extensive 
compensation ;  and  the  matter  can  only  be  now  remedied  by  the 
insertion  of  carefully  drawn  clauses  in  our  legislative  acts, 
which  shall  give  to  property  the  full  protection  that  the  consti- 
tutional guaranty  has  failed  to  secure. 

Compensation,  (a) — In  our  examination  of  the  clause  which 

(a)  The  Compensation. — Compensation  is  necessary,  and  must  be  expressly  pro- 
vided for.  A  statute  for  taking  private  property  without  provision  for  a  just  com- 
pensation is  void.  People  v.  Kimball,  4  Mich.  95 :  and  the  owner  may  bring  tres- 
pass. Buffalo  Bayou  &c.  R.  R.  v.  Ferris,  20  Tex.  588.  The  Constitution  does  not 
execute  itself;  the  statute  must  provide  for  compensation.  A  taking  without  origi- 
nal authority  of  law  cannot  be  so  confirmed  by  subsequent  act  as  to  take  away  the 
right  of  action  on  account  of  the  wrongful  taking  and  substitute  for  it  a  statutory 
right  and  mode  of  compensation.  Matter  of  Townsend,  39  N.  T.  171. 

What  is  a  "•Just'1'1  Compensation,  Method  of  Assessment,  etc. — In  the  absence  of 
express  constitutional  provisions,  the  compensation,  it  seems,  cannot  consist  in  laying 
out  ways  or  other  improvements  instead  of  payment  of  money,  unless  by  assent  of  the 
o'wner.  Central  &c.  R.  R.  v.  Holler,  7  Ohio,  N.  S.  220. 

The  amount  of  the  compensation  must  be  determined  by  a  fair  tribunal ;  a  stat- 


464  COMPENSATION. 

we  are  now  discussing,  the  last  head  to  be  considered  is 
in  regard  to  the  time  and  mode  of  making  compensation.  On 

ute  providing  that  an  agent  of  a  railroad  company  should  be  one  of  a  board  to  as- 
sess the  damages  ex  parte,  to  be  paid  by  the  company  was  held  invalid.  Powers  v. 
Bears,  12  Wise.  213.  A  provision  for  assessment  by  a  board  of  three  citizens  without 
notice  was  also  held  void.  Langford  v.  Ramsey  Co.  16  Minn.  375T  But  it  is  said  in 
some  States  that  notice  is  not  necessary,  at  least  to  non-resident  owners.  Anderson 
v.  Turbeville,  6  Cold.  150 ;  Johnson  v.  Joliet  &c.  R.  R.  23  111.  202 ;  nor  that  the  tri- 
bunal should  be  sworn,  Ibid.  The  Tennessee  case,  while  holding  that  notice  is  not 
necessary  of  the  proceedings  to  condemn,  does,  however,  require  notice  of  the  assess- 
ment of  compensation.  If  the  owner  is  notified  and  appears,  he  cannot  object  that  the 
statute  does  not  require  notice.  Kramer  v.  Cleveland  &c.  R.  R.  5  Ohio,  N".  S.  140. 

A  statute  providing  for  notice  by  publication,  and  that  persons  not  making 
claims  within  a  specified  time  should  be  barred  is  valid.  Cupp  v.  Commrs.  19  Ohio, 
N.  S.  173. 

The  decisions  are  directly  conflicting  in  different  States  as  to  the  necessity  of  a 
jury.  In  some  a  jury  is  expressly  required,  and  in  others  is  expressly  waived  by  the 
Constitution.  In  most,  however,  the  Constitution  is  silent  upon  this  particular.  In 
New  Hampshire  a  jury  is  unnecessary.  2nreM.t,  Washington  &c.  R.  R.  35  N.  H.  134. 
In  Mississippi  it  is  held  that  a  jury  is  essential.  Isom  v.  Mississippi  &c.  R.  R.  36 
Miss.  300  ;  and  in  Indiana,  Lake  Erie  &c.  R.  R.  v.  Heath,  9  Ind.  558,  except  in  pro- 
ceedings to  open  highways.  Drouberger  v.  Reed,  1 1  Ind.  420 ;  Hymes  v.  Aydelott,  26 
Ind.  431.  In  Ohio  a  jury  is  required  by  the  Constitution.  Matter  of  Wells  County 
Road,  7  Ohio,  N.  S.  16;  see  to  the  necessity  of  a  jury,  Norristown  &c.  Co.  v.  Burket, 
26  Ind.  53;  Buffalo  Bayou  &c.  R.  R.  v.  Ferris,  26  Tex.  588;  Pennsylvania  R.  R. 
v.  Lutheran  Cong.  53  Penn.  St.  445 ;  Louisiana  &c.  PI.  R.  v.  Pickett,  25  Mo.  535 
(jury  of  five  good);  H.  T.  &  B.  R.  W.  Co.  v.  Milburn,  34  Tex.  224;  see  also  note 
upon  "  Trial  by  Jury." 

The  Constitution  requiring  a  jury,  a  statute  providing  for  a  jury  but  not  dis- 
tinctly requiring  that  they  should  be  sworn,  was  held  void,  and  the  fact  that  the 
jury  were  actually  sworn  made  no  difference.  Lunesdeu  v.  Milwaukee,  8  Wise.  485. 
This  case  would,  doubtless,  not  be  followed. 

The  right  of  a  trial  by  jury  in  cases  of  assessing  compensation  involves  the  prin- 
ciple, that  all  the  jurors  must  concur  in  the  verdict.  Chicago  &c.  R..R.  v.  Sanford, 
23  Mich.  418. 

The  Constitution  providing  for  assessment  by  a  jury  or  by  commissioners,  a  stat- 
ute authorizing  the  court,  on  appeal  or  on  motion  to  confirm  the  report,  to  increase 
or  diminish  the  award  was  held  void.  Rochester  Water  Co.  v.  Wood,  60  Barb.  137. 

The  statutory  method  is  exclusive  of  any  other.  Brown  v.  Beatty,  34  Miss.  227  ; 
Colclough  v.  Nashville  &c.  R.  R.  2  Head,  171 ;  Dunlap  v.  Pulley,  28  Iowa,  469;  and 
it  seems  even  when  the  statutory  provisions  for  taking  are  not  strictly  observed.  In- 
diana &c.  R.  R.  v.  Oakes,  20  Ind.  9.  But  the  statutory  authority  must  be  strictly 
followed.  Curran  v.  Shattuck,  24  Cal.  427. 

The  compensation  must  be  made  to  the  true  owner ;  and  if  the  owner  is  a  married 
woman,  her  right  to  the  money  awarded  must  be  protected.  East  Tenn.  R.  R.  v. 
Love,  3  Head,  63. 

When  the  Compensation  Must  le  Made. — For  cases  which  hold  that  the  compen- 
sation must  be  simultaneous  with  the  taking,  see  Walther  v.  Warner,  25  Mo.  277 ; 


COMPENSATION.  405 

this  subject  much  diversity  of  opinion  has  existed,  as  to 
whether  payment  or  tender  of  compensation  should  be  made  a 

San  Francisco  v.  Scott,  4  Cal.  114  ;  Drouberger  v.  Reed,  11  Ind.  420  ;  Comuis.  v, 
Bowie,  34  Ala.  461 ;  Penrice  v.  Wallis,  37  Miss.  172;  Henry  v.  Dubuque  &c.  R.  R.  10 
Iowa,  540 ;  Shute  v,  Chicago  &c.  R.  R.  26  111.  436 ;  Ferris  v.  Bramble,  5  Ohio,  N.  S. 
109*;  Buffalo  Bayou  &c.  R.  R.  v.  Ferris,  26  Tex.  588 ;  Fox  v.  Western  Pacific  R.  R. 
31  Cal.  538. 

Where  the  compensation  is  to  be  a  condition  to  or  simultaneous  with  the  taking, 
equity  will  enjoin  the  use  of  the  land  until  the  compensation  be  made.  Shute  v. 
Chicago  &c.  R.  R.  26  111.  436;  People  v.  Law,  34  Barb.  494;  Western  &c.  R.  R.  v. 
Owings,  15  Md.  199;  Curran  v.  Shattuck,  24  Cal.  427;  Penrice  v.  Wallis,  37  Miss. 
172. 

When  the  Constitution  requires  the  compensation  to  be  paid  prior  to  the  taking, 
and  a  statute  authorizing  the  taking  does  not  specify  whether  the  compensation  is 
to  be  made  before  or  after  the  property  is  taken,  it  will  be  construed  to  intend  the 
former.  Sharpless  v.  West  Chester,  1  Grant's  Cases,  257. 

The  owner  can  waive  prepayment,  and  a  short  period  of  acquiescence  in  the  prog- 
ress of  the  work  will  amount  to  such  waiver.  McAuley  v.  Western  &c.  R.  R.  33  Vt. 
311 ;  but,  per  contra,  it  was  held  in  California  that  when  compensation  is  a  prerequi- 
site, taking  without  such  compensation  made  at  the  time  is  wholly  void,  and  the 
owner  cannot  afterwards  affirm  the  taking  and  recover  the  compensation  in  an  ac- 
tion. Johnson  v.  Alameda  Co.  14  Cal.  106. 

Preliminary  steps,  such  as  entiy,  location,  and  survey  may  be  made  before  pay- 
ment of  compensation.  Fox  v.  Western  Pac.  R.  R.  31  Cal.  538;  and  see  State  v. 
Seymour,  6  Vroom,  47. 

But  until  payment  or  tender  no  title  is  vested,  and  the  party  who  has  taken  pre- 
liminary steps  for  condemnation  of  the  property  may  withdraw.  A  city  will  not  be 
compelled  by  mandamus  to  go  on  and  complete  the  taking  of  land  for  a  street,  either 
at  the  suit  of  the  owner  or  of  one  who  purchased  materials  and  a  portion  of  a  lot  at  a 
sale  by  the  city  of  such  materials,  etc.,  on  the  route  of  the  proposed  street,  although 
damages  and  betterments  may  have  been  assessed,  and  although  such  purchaser  may 
have  paid  the  betterments  assessed  on  him.  State  v.  Graves,  19  Md.  351 ;  but 
whether  the  city  would  not  be  liable  in  damages,  qu. 

A  provision  in  a  charter  that,  in  case  of  appeal  from  the  commissioners,  and  re- 
fusal by  owner  of  a  tender  of  the  amount  awarded,  such  amount  may  be  paid  into 
court,  and  the  corporation  may  thereupon  take  the  land,  is  valid  under  a  Constitu- 
tion requiring  the  payment  to  precede  the  taking.  Cooper  v.  Chester  R.  R.  4  C.  E. 
Green  (N.  J.),  199.  See  also  Peterson  v.  Ferreby,  30  Iowa,  327.  But  on  the  con- 
trary, there  is  a  reported  case  which  holds  that  a  statute  authorizing  the  taking  of 
land  on  tender  of  the  damages  awarded  by  viewers,  without  awaiting  the  result  of  an 
appeal,  is  unconstitutional  and  void.  Watson  v.  P.  &  C."  R.  R.  2  Pittsb.  99. 

There  are  cases  which,  in  the  absence  of  constitutionil  requirements  of  prepay- 
ment, hold  it  sufficient  if  compensation  is  secured.  Smith  v.  Taylor,  34  Tex.  589 ; 
Rexford  v.  Knight,  11  N.  Y.  308;  People  v.  Mich.  So.  R.  R.  3  Mich.  496 ;  Taylor  v! 
Marcy,  25  111.  518  ;  Harper  v.  Richardson,  22  Cal.  251 ;  People  v.  Hayden,  6  Hill, 
359 ;  Commonwealth  v.  Pittsburg  &c.  R.  R.  58  Penn.  St.  26. 

Pledge  of  taxes  to  be  raised  in  a  school  district  as  security  for  the  compensation 
for  land  taken  for  the  district  school-house,  was  held  a  sufficient  compliance  with 
30 


466  COMPENSATION. 

condition  precedent  to  any  act  of  interference  with  private 
property.  The  only  certain  guaranty,  of  course,  would  "be 

the  Constitution.  Long  v.  Fuller,  68  Penn.  St.  1 70.  Providing  that  a  mill  owner 
flowing  the  land  of  another  shall  pay  what  the  land  is  worth,  "  to  be  ascertained  by 
the  verdict  of  a  jury  in  an  action  of  trespass,"  is  not  providing  a  just  compensation; 
but  aliter,  it  seems,  if  the  judgment  to  be  recovered  in  such  action  is  made  a  lien 
from  the  institution  of  the  proceeding.  Newell  v.  Smith,  15  Wise.  101. 

Compensation  by  judgment  to  be  rendered  at  least  two  terms  after  the  taking,  ia 
not  adequate.  Buffalo  Bayou  &c.  R.  R.  v.  Ferris,  26  Tex.  588. 

Amount  of  the  Compensation. — The  owner  is  entitled  to  the  fair  value  of  the  land 
taken,  its  value  to  sell,  and  not  any  value  special  or  peculiar  to  himself.  Somerville 
&c.  R.  R.  v.  Doughty,  2  Zab.  495 ;  Sater  v.  Burlington  &c.  R.  R.  1  Iowa,  386  ;  Henry 
v.  Dubuque  &c.  R.  R.  2  Iowa,  288 ;  Lexington  v.  Long,  31  Mo.  369 ;  Dickinson  v. 
Fitchburg,  13  Gray,  546.  In  ascertaining  the  present  worth  of  land  condemned  for 
a  railroad,  the  fact  that  it  is  necessary  for  the  railroad  to  have  it  is  not  to  be  consid- 
ered. Virginia  &c.  R.  R.  v.  Elliott,  5  Nev.  358.  And  if  land  of  one  corporation  is 
taken  by  another,  its  value  in  the  market,  and  not  its  value  for  the  purposes  of  the 
particular  corporation  holding  it,  is  to  be  given.  Boston  &  Wor.  R.  R.  v.  Old  Col- 
ony R.  R.  12  Cush.  605  ;  and  see  Goodin  v.  Cincinnati  Canal  Co.  18  Ohio,  N.  S.  169. 
When  the  franchise  of  a  railroad  is  taken  in  whole  or  in  part,  it  is  not  just  compen- 
sation to  repay  the  expense  of  construction  of  the  road.  Commonwealth  v.  Pitts- 
burg  &c.  R.  R.  58  Penn.  St.  21,  50. 

A  statute  provided  for  compensation  for  commodities  impressed,  according  to  a 
scale  of  prices,  fixed  from  time  to  time  by  commissioners,  and  to  be  in  force  for  a 
certain  period  of  time ;  this  was  held  invalid  under  the  Constitution  of  the  Confed- 
erate States ;  the  fair  value  at  the  time  of  taking  must  be  paid.  Cunningham  T. 
Campbell,  33  Geo.  625. 

When  part  of  a  tract  is  taken,  the  compensation  includes  the  consequential  injury 
to  the  remaining  portion.  The  owner  is  entitled  to  the  amount  in  which  this  re- 
maining portion  is  depreciated  in  value;  and  in  ascertaining  this  amount,  all  circum- 
stances which  naturally  injure  the  property,  resulting  from  the  use  of  the  part  taken, 
are  to  be  taken  into  account,  such  as  difficulty  of  access,  difficulty  in  carrying  on 
business,  danger  from  fire,  increased  expense,  and  the  like.  But  the  owner  is  not  to 
be  compensated  for  injuries  speculative  and  too  remote.  Bigelow  v.  West  Wiscon- 
sin R.  R.  27  Wise.  478  ;  Wilmington  &c.  R.  R.  v.  Stauffer,  60  Penn.  St.  374 ;  Matter 
of  Utica  &c.  R.  R.  56  Barb.  456  ;  Hatch  v.  Cincinnati  &c.  R.  R.  18  Ohio,  N.  S.  92; 
Denton  v.  Polk  Co.  9  Iowa,  594  ;  Newby  v.  Platte  Co.  25  Mo.  258 ;  Pacific  R.  R.  v. 
Chrystal,  25  Mo.  544 ;  Carpenter  v.  Landaff,  42  N.  H.  218  ;  Winona  &  St.  P.  R.  R. 
v.  Waldron,  11  Minn.  515  ;  Nicholson  v.  N.  Y.  &  N.  H.  R.  R.  22  Conn.  74  ;  Nichols 
v.  Bridgeport,  23  Conn.  189;  Mayor  v.  Long,  31  Mo.  369;  St.  Louis  &c.  R.  R.  v. 
Richardson,  45  Mo.  466  ;  Little  Miami  R.  R.  v.  Collett,  6  Ohio,  N.  S.  182  ;  Somer- 
ville &c.  R.  R.  v.  Doughty,  2  Zab.  495 ;  Sater  v.  Burlington  &c.  PL  R.  1  Iowa,  393 ; 
Henry  v.  Dubuque  &c.  R.  R,  2  Iowa,  300;  In  re  Poughkeepsie  &c.  R.  R.  63  Barb. 
151. 

Set-off  of  Betterments  or  Benefits.—  There  is  direct  conflict  in  the  authorities  upon 
the  question  whether,  in  estimating  the  compensation,  the  benefits  or  betterments  re- 
sulting to  the  owner  may  be  set  off  against  the  gross  amount  awarded  him.  In 
some  States  this  is  expressly  forbidden  by  constitutional  provision ;  and  in  others  by 


COMPENSATION.  467 

to  make  compensation,  in  all  cases,  precede  the  first  act  of  in- 
terference witlj  individual  property ;  but  it  is  at  once  apparent, 
in  this  as  in  many  other  acts  of  administrative  power,  that  con- 
flicting interests  present  themselves,  difficult  to  be  reconciled. 
In  the  construction  of  works  of  public  improvement,  as  railroads 
or  canals,  for  instance,  before  it  is  known  what  lands  will  be 
wanted,  preliminary  steps,  such  for  instance  as  surveys,  are  in- 
dispensably necessary.  These  preliminary  steps  are,  in  them- 
selves, a  trespass,  and  may  sometimes,  as  by  the  felling  of  trees, 
work  actual  injury  to  the  proprietor.  On  the  other  hand,  if 
payment  be  not  made  before  the  work  is  actually  begun,  then, 

statute.  In  those  States  where  there  is  no  constitutional  prohibition,  there  is  a 
conflict  of  decision.  Many  cases  hold,  and  perhaps  this  is  the  general  rule,  that  in 
estimating  that  portion  of  the  compensation  which  results  from  the  injury  to  that 
portion  of  the  proprietor's  land  not  taken,  any  benefits  to  such  portion  special  and 
peculiar  to  himself  resulting  from  the  improvement  are  to  be  offset  against  the 
injuries.  Columbus  P.  &I.  R.  R.  v.  Simpson,  5  Ohio,  N.  S.  251;  Kramer  v.  Cleveland 
&c.  R.  R.  5  Ohio,  N.  S.  140 ;  Newby  v.  Platte  Co.  25  Mo.  258 ;  Garrett  v.  St.  Louis, 
25  Mo.  505  ;  People  v.  Williams,  51  111.  68 ;  In  re  Mt.  Washington  R.  R.  85  N.  H.  134. 

That  benefits  cannot  be  offset,  see,  Brown  v.  Beatty,  34  Miss.  227;  Trow  v. 
Mississippi  R.  R.  36  Miss.  300 ;  Penrice  v.  Wallis,  37  Miss.  173 ;  Alabama  &c.  R.  R. 
v.  Burkett,  42  Ala.  83;  Carson  v.  Coleman,  3  Stockt.  106. 

The  Legislature  may  cause  the  tax  for  payment  of  the  compensation  to  be 
assessed  on  the  particular  locality.  Miller  v.  Craig,  3  Stockt.  175 ;  People  v.  Wearing, 
27  N.  Y.  306 ;  Cleveland  v.  Wick,  18  Ohio,  N.  S.  303  (under  the  new  Constitution 
of  Ohio,  which  prohibits  offset  of  benefits) ;  Sessions  v.  Crunkilton,  20  Ohio,  N.  S. 
349. 

The  value  of  land  talen,  must  be  given  without  any  deduction  for  benefits  :  but 
the  benefits  may  be  offset  against  the  damage  to  the  remaining  lands.  Robbins  v. 
Milwaukee  &c.  R.  R.  6  Wise.  636 ;  Buffalo  Bayou  &c.  R.  R.  v.  Ferris,  26  Tex.  588  ; 
Elizabethtown  &c.  R.  R.  v.  Helm,  8  Bush,  681 ;  See  Hayfcs  v.  0.  O.  &  R.  V.  R.  R.  54 
111.  373. 

In  those  States  where  benefits  may  be  offset,  only  those  peculiar  to  the  owner  are 
allowed ;  those  which  he  shares  in  common  with  the  community  about  him  cannot 
be.  St.  Louis  &c.  R.  R.  v.  Richardson,  45  Mo.  486 ;  In  re  Mt.  Washington  R.  R.  35 
N.  H.  134 ;  Penrice  v.  Wallis,  37  Miss.  172 ;  Pacific  &c.  R.  R.  v.  Chrystal,  25  Mo.  544 ; 
Winona  &c.  R.  R.  v.  Waldron,  11  Minn.  515;  Nichols  v.  Bridgeport,  23  Conn.  189  ; 
and  see  also  cases  last  above  cited. 

If  the  owner  is  satisfied  with  the  provision  made  for  his  compensation,  an 
occupant  holding  under  him  cannot  complain  that  the  act  is  void.  Detmold  v. 
Drake,  46  N.  Y.  318. 

When  the  damages  for  the  erection  of  a  bridge  have  been  assessed  and  paid,  it 
will  be  presumed  that  they  included  all  liability  to  injury  from  a  future  change  in 
the  height  of  the  bridge.  Skinner  v.  Hartford  Bridge  Co.  29  Conn.  523 ;  Benden  v. 
Nashua,  17  N.  H.  477. 


468  COMPENSATION. 

if  it  be  discontinued  or  left  in  an  -  imperfect  state,  the  owner 
might  be  entirely  remediless.  In  such  a  conflict  of  interests 
the  current  of  decisions  seems  to  tend  to  establish  the  rule  that, 
the  preliminary  steps  in  regard  to  public  works  may  be  taken 
without  making  compensation,  but  that,  before  any  definitive 
act  be  done  toward  the  construction  of  the  improvement  which 
is  in  the  nature  of  the  assertion  of  ownership,  payment  must 
be  made  or  tendered,  or  a  certain  and  adequate  remedy  be  pro- 
vided ;  and,  unless  this  is  done  in  the  act  authorizing  the  work, 
the  statute  is  wholly  unconstitutional  and  void,  and  any  step 
taken  under  it  is  an  unauthorized  trespass.* 

So,  in  New  York,  it  has  been  decided,  in  regard  to  the  ex- 
ercise by  the  State  of  its  right  of  eminent  domain,  not  to  be  nec- 
essary that  payment  or  compensation  should  be  made  before 
entry ;  all  that  is  requisite  is  that  the  law  should  provide  a 
certain  and  adequate"  remedy  by  which  the  individual  can  ob- 
tain compensation  without  unreasonable  delay.  The  owner  is 
not  to  be  left  dependent  on  the  future  justice  of  the  Legislature 
to  provide  compensation  for  his  proper ty.f  It  is  sufficient, 
however,  that  the  law  provides  for  compensation,  and  it  is  not 
necessary  that  the  payment  of  such  compensation  should  be 
made  a  condition  precedent  to  entry  upon  appropriation  of  the 
premises.  J 

In  Maryland,  the  Constitution  provides  (art.  iii,  §  46  ;  ante, 
p.  421)  that  the  compensation,  as  agreed  on  between  the  parties, 
or  awarded  by  a  jury,  shall  be  first  paid  or  tendered  to  the 
party  entitled  to  such  compensation;  and  under  this  it  has 
been  held  that  it  is  sufficient  if  provision  be  made  for  com- 
pensation, first  to  be  paid  or  tendered  to  the  owner,  to  be  fixed 
either  by  contract  with  him  or  by  the  assessment  of  com- 
missioners, giving  the  owner  the  right  of  appeal  from  their 
decisions  and  securing  a  trial  by  jury  in  the  appellate  court ; 
and  the  neglect  or  refusal  to  appeal  is  held  as  a  waiver  of  the 

*  In  Mississippi,  as  we  have  seen  above,  f  Bloodgood  v.  Mohawk  and  Hudson  R. 

the  clause  is  explicit  that  compensation  shall  R.  Co.  18  "Wend.  9;  Baker  v.  Johnson,  2  Hill, 

be  first  made;  and  under  that  provision  it  has  342;  People  v.  Hayden,  6  Hill,  359;  Rexford 

been  there  held  that  payment  is  a  condition  v.  Knight,  1  Kern.  308. 

precedent    to    the    seizure    for    public    use.  \  People  v.  Hayden,  6  Hill,  359;  Smith 

Thompson  v.  Grand  Gulf  R.  R.  and  Banking  v.  Helmer,  7  Barbour,  S.  C.  R.  416. 
Co.  3  How.  Miss.  R.  240. 


COMPENSATION.  469 

right  to  a  jury  trial;  and  on  payment  or  tender  of  the  com- 
pensation assessed,  the  property  may  be  taken  for  public  use. 
The  prohibition  against  taking  private  property  for  public  use 
until  compensation  be  paid  or  tendered,  means  taking  the 
property  from  the  owner  and  actually  applying  it  to  the  use  of 
the  public,  and  does  not  prevent  a  survey  and  other  necessary 
preliminary  steps.  The  owner  is  secure  in  the  use  and  enjoy- 
ment of  his  property  until  his  damages  are  regularly  ascertained 
and  paid  or  tendered ;  and  this  satisfies  the  constitutional  pro- 
vision.* So,  in  Maine,  it  has  been  held  that  the  Legislature 
may  authorize  a  temporary  occupation  of  property,  as  an  in- 
cipent  proceeding,  wdthout  compensation ;  but  before  the  taking 
is  completed,  payment  must  be  made  or  tendered,  f 

When  the  power  of  taxation  in  a  municipal  corporation  is 
so  limited  as  to  be  inadequate  to  pay  the  damages  occasioned 
by  the  laying  out  of  a  street  within  a  reasonable  time,  the 
Supreme  Court  of  Pennsylvania  has  held  that  it  would  restrain 
the  opening  of  the  street  by  injunction  till  security  for  proper 
compensation  should  be  given.  J 

The  mode  of  making  compensation  is  next  to  be  considered. 
It  was  said,  in  an  early  case,  that  the  legislative  discretion  was 
absolute  only  as  to  the  existence  of  the  necessity  to  take  private 
property ;  that  as  to  the  amount  of  compensation,  it  could  only 
be  arrived  at  in  one  of  three  ways :  (1.)  By  the  parties :  that 
is,  by  stipulation  between  the  Legislature  and  the  proprietor. 
(2.)  By  commissioners  mutually  elected  by  the  parties.  (3.) 
By  the  intervention  of  a  jury.  And  in  this  case  it  was  held, 
that  an  act  appointing  commissioners  at  the  mere  pleasure  of 
the  Legislature,  and  to  make  compensation  in  vacant  lauds, 
was  for  both  reasons  unconstitutional  and  void.  | 

But  it  does  not  seem  now  to  be  necessary  that  the  corn- 

*  Stewart  v.  The  Mayor,  7  Maryland,  501.  England  it  has  been  decided,  under  a  railroad 

f  Cushman  v.  Smith,  34  Maine,  247.     For  act  providing  for  compensation  to  be  made 

cases  as  to  whether  payment  must  precede  or  for  all  injury  done,  that  trespass  could  not  be 

Tae   simultaneous  with  taking,  see  Hooker  v.  brought  till  damage  was  actually  sustained, 

The  New  Haven   and   Northampton  Co.  14  Thicknesse  v.  Lancaster  Canal  Co.  4  Mee3. 

Conn.   146;  Smith  v.  Helmer,  7  Barb.  416;  and  \Vels.  4*72. 

People  v.  Hayden,  6  Hill,  359 ;  Rubottom  v.  \  Keene   v.   The  Borough  of  Bristol,  26 

M'Clure,  4  Blackf.  505  ;  Thompson  v.  Grand  Penn.  46. 

Gulf  R.   R.    and  Banking  Co.  3  How.  Miss.  ||  Van  Home's  Lessee  v.  Dorrance,  2  Dall. 

240 ;  Pittsburgh  v.   Scott,  1  Penn.  309.     In  813,  315. 


470  COMPENSATION. 

pensation  should  be  assessed  by  a  jury,  in  the  common-law 
sense  of  the  phrase.  Mr.  Chancellor  Wai  worth,  in  the  Court 
of  Errors  in  the  State  of  New  York,  has  used  this  language : 
11  The  mode  of  ascertaining  damages  by  commission  (i.  e. 
commissioners  appointed  by  the  governor)  has  been  adopted 
by  the  Legislature  in  a  great  variety  of  cases ;  and  I  can  see 
nothing  in  the  provisions  of  the  Constitution  which  render 
such  a  course  exceptionable."  *  *  "  The  provision  of  the 
Constitution  as  to  the  right  of  trial  by  jury,  has  no  relation  to 
cases  of  the  kind  now  under  consideration."  * 

The  Constitution  of  New  York  declares  that  when  private 
property  is  taken  the  compensation  shall  be  ascertained  by 
a  jury  or  by  not  less  than  three  commissioners  appointed  by  a 
court  of  record,  f  This  provision  is  not  satisfied  by  a  city 
charter  which  authorizes  the  common  council  to  appoint  five 
disinterested  freeholders  to  appraise  and  fix  the  compensation 
in  regard  to  a  public  work;  and  the  act  is  unconstitutional. J 
Under  this  same  provision,  it  has  been  also  decided  that  by 
this  section  is  not  meant  a  common-law  jury,  and  that  unanimity 
is  not  required ;  but  that  the  action  of  a  majority  of  twelve 
appraisers  satisfies  the  clause,  the  Court  of  Appeals  using  this 
language : | 

The  question  then  remains,  whether  these  appraisers  are  a  jury,  within  the 
meaning  of  the  Constitution.  If  that  term  had  not  acquired  a  peculiar  meaning 
when  applied  to  this  class  of  cases,  by  prior  legislative  usage,  and  had  not  been 
continually  in  use  in  that  special  sense  up  to  the  time  of  the  convention  by 
which  the  Constitution  was  framed,  I  should,  without  any  doubt  resting  on  my 
mind,  be  of  opinion  that  the  peculiar  tribunal  provided  by  this  act,  was  not  a 
jury.  That  term,  when  spoken  of  in  connection  with  trial  by  jury  in  the  second 
section  of  the  same  article,  imports  a  jury  of  twelve  men  whose  verdict  is  to- 
be  unanimous.  Such  must  be  its  acceptation  to  every  one  acquainted  with  the 
history  of  common  law,  and  aware  of  the  high  estimation  in  which  that 
institution  so  constituted  has  for  so  long  a  period  been  held.  But  from  an 
examination  of  the  statutes  upon  the  subject  of  taking  private  property  for 
public  purposes,  during  a  period  of  twenty  years  immediately  preceding  the 
sitting  of  the  convention,  it  is  apparent  that  the  term  "  a  jury  "  had  been  in 
frequent  use,  as  descriptive  of  a  body  of  jurymen,  drawn  in  the  ordinary  mode- 
of  drawing  juries,  to  whom  was  committed  the  appraisement  of  damages  for 

*  Beekman  v.  Saratoga  and  Schy.  R.  R.          i  Clark  v.  City  of  Utica,  18  Barb.  451. 
Co.  3  Paige,  76.  |  Cruger   v.  Hudson  R.  R.  Co.  2   Kern, 

f  Cons.  art.  i,  §  7,  ante,  420.  196,  per  Johnson,  J. 


COMPENSATION.  471 

private  property  taken  for  public  uses,  and  whose  decision  was  to  be  made  by 
a  majority.  It  seems  to  have  been  thus  used  because  the  term  was  descriptive 
of  the  civil  condition  of  the  persons  composing  it,  and  by  way  of  distinguish- 
ing between  such  a  body  of  jurymen  and  the  commissioners  appointed  by 
courts,  under  many  other  acts,  to  perform  the  same  functions.  We  have  been 
furnished  with  references  to  many  of  these  acts,  by  the  counsel  for  the  defend- 
ants. 

These  instances  are  certainly  sufficient  to  establish  the  position  that  at  the 
time  of  the  convention  there  was  a  known  legislative  usage  in  respect  to  this 
subject,  according  to  which  the  term  "jury"  did  not  necessarily  import  a 
tribunal  consisting  of  twelve  men  acting  only  upon  a  unanimous  determination, 
but  on  the  contrary  was  used  to  describe  a  body  of  jurors  of  different  numbers, 
.and  deciding  by  majorities  or  otherwise,  as  the  Legislature  in  each  instance 
directed.  The  convention  ought,  therefore,  to  be  deemed  to  have  used  this 
term  in  the  sense  in  which  it  was  then  known  to  the  law,  and  to  have  selected 
out  of  the  modes  of  proceeding  theretofore  in  use  in  taking  private  property, 
those  two  modes  which  they  thought  best  calculated  to  secure  both  public  and 
private  rights, — appraisement  by  commissioners,  or  by  juries,  giving  to  this 
latter  term  not  the  restricted  meaning  which  belongs  to  it  when  used  in 
reference  to  trial,  civil  or  criminal,  but  the  broader  sense  which  it  had  acquired 
by  legislative  use.  Had  they  intended  to  confine  it  to  the  narrower  meaning, 
familiar  as  they  were  with  the  previous  practice  upon  the  subject,  I  think  they 
would  have  found  clear  terms  to  express  that  intention. 

As  to  the  kind  of  property  or  currency  in  which  compensa- 
tion should  be  made,  it  was  intimated  in  an  early  case  by  the 
Supreme  Court  of  the  United  States,  that  no  just  compensation 
could  be  made  except  in  money,  on  the  ground  that  money  is 
the  common  standard  by  which  all  values  are  ascertained ;  *  but 
in  New  York  it  has  been  expressly  decided  that  the  benefit 
accruing  to  a  person  whose  land  was  taken  for  a  street,  might 
be  set  off  against  the  loss  or  damage  sustained  by  him  by  the 
taking  of  his  property  for  a  street,  and  if  equal  to  the  damage 
or  loss,  it  was  a  just  compensation  for  the  property  taken,  to 
the  extent  of  such  benefit ;  f  and  a  similar  result  has  been 
arrived  at  in  Pennsylvania.  J  Indeed,  in  the  latter  case,  it  was 
intimated  "  that  it  should  rest  in  the  wisdom  of  the  Legislature 
to  determine  the  nature  and  kind  of  compensation  to  be  made ;" 
but  there  seems  no  good  reason  for  permitting  .the  mere  legisla- 
tive discretion  to  be  the  supreme  arbiter  of  the  meaning  of  the 

*  Van  Home's  Lessee  v.  Dorrance,  2  Dall.  f  Livingston  T.  The  Mayor,  <fec.  8  Wend. 85. 

313,  said  in  Satterlee  v.  Matthewson,  16  Serg.  j  M'Master  T.The  Commonwealth,  3  Watts, 

<fe  Rawle,  179,  to  have  been  questioned.  292. 


472  COMPENSATION. 

constitutional  provision  in  this,  any  more  than  in  any  other 
respect.  The  compensation,  to  be  constitutional,  must  be  a  just 
one. 

Some  special  rules  have  here  to  be  noticed.  In  Massachu- 
setts, in  estimating  the  damages  for  land  taken  for  a  highway 
or  railroad,  any  direct  or  peculiar  benefit  or  increase  of  value 
accruing  therefrom  to  land  of  the  same  owner  adjoining  or  con- 
nected with  the  land  taken,  and  forming  part  of  the  same  parcel 
or  tract,  is  to  be  considered  by  the  jury  and  allowed  by  way  of 
set-off;  but  not  any  general  benefit  or  increase  of  value  received 
by  such  land  in  common  with  other  lands  in  the  neighborhood, 
or,  any  benefit  to  other  land  of  the  same  owner,  though  in  the 
same  town.  And  the  time  at  and  from  which  the  benefit  accru- 
ing to  the  owner  of  land  taken  for  a  highway  or  railroad,  is  to 
be  estimated,  in  assessing  his  damages  for  such  taking,  is  that 
of  the  actual  location  of  the  work.  * 

It  has  been  held  in  New  York,  that  where  the  right  of  emi- 
nent domain  is  once  exercised,  and  lands  taken  for  a  public  use, 
as  for  a  canal,  the  fee  is  divested,  and  though  the  use  may 
be  abandoned,  the  property  does  not  revert  to  the  original 
owner,  f  (a)  In  Massachusetts,  too,  it  has  been  held  that  where 

*  Meacham  v.  Fitchburg  R.  R.  Co.  4  Gush.  f  Hey  ward  v.  The  Mayor,  &c.  of  N.  Y . 

291.  ,  3  Seld.  314;  Rexford  v.  Knight,  1  Kern.  308. 

(a)  Extent  of  the  Taking,  whether  the  Fee,  or  an  Easement. — The  decision  of  the 
Legislature  is  final  as  to  the  extent  of  the  interest  to  be  taken,  as  well  as  to  the 
necessity  of  taking  at  all.  Where  the  Legislature  therefore  provides  that  the  fee 
shall  pass,  the  court  will  not  go  behind  the  statute,  but  will  presume  that  it  was  nec- 
essary to  take  the  fee.  De  Varaigne  v.  Fox,  2  Blatch.  C.  C.  95 ;  Dingley  v.  Boston, 
100  Mass.  544.  And  see  New  York  &c.  R.  R.  v.  Kip,  46  N.  Y.  546. 

Where  the  Legislature  does  not  expressly  provide  that  the  fee  shall  pass,  such 
estate  only  passes  as  is  necessary  for  the  use  for  which  it  is  taken,  and  of  this  the 
court  will  judge.  Heyneman  v.  Blake,  19  Cal.  579;  Corwin  v.  Cowan,  12  Ohio,  N.  S. 
629;  Alabama  &c.  R.  R.  v.  Burkett,  42  Ala.  83;  Kane  v.  Baltimore,  15  Md.  240  (case 
of  taking  a  stream  for  city  water  supply) ;  Blake  v.  Rich,  34  N.  H.  282 ;  Chapin  v. 
Sullivan  R.  R.  39  N.  H.  564 ;  Evans  v.  Haeiner,  29  Mo.  141  (right  to  soil  and  min- 
erals of  land  taken) ;  "Woodruff  v.  Neal,  28  Conn.  165  (right  to  herbage  in  highways). 
In  the  case  of  a  railroad  the  exclusive  right  to  the  possession  of  the  land  condemned 
seems  essential.  Troy  &c.  R.  R.  v.  Potter,  42  Vt.  265  ;  but  see  cases  last  before  cited. 

That  where  the  use  determines  the  land  does  not  revert,  see  Hatch  v.  Cincinnati 
&c.  R.  R.  18  Ohio,  N.  S.  92. 

The  Legislature  cannot  authorize  the  taking  of  more  than  is  necessary  for  the 
public  use,  e.  g.,  more  land  than  is  necessary  for  a  street.  Matter  of  Albany  Street, 


COMPENSATION.  473 

the  land  of  an  individual  is  taken  under  the  authority  of  the 
Legislature  for  public  use,  and  a  full  compensation  is  paid  to 
the  proprietor  for  a  perpetual  easement  therein,  and  the  same 
land  is  afterwards  appropriated  by  legislative  authority  to  an- 
other public  use  of  a  like  kind,  the  owner  of  the  laud  is  not  en- 
titled to  any  further  compensation.  So,  where  a  turnpike  has 
by  law  been  converted  into  a  common  highway,  no  new  claim 
for  compensation  can  be  sustained  by  the  owner  of  the  land 
over  which  it  passes.  So,  too,  where  a  canal  company  paid  full 
damages  for  the  flowing  of  the  plaintiff's  laud,  and  the  canal 
was  afterwards  discontinued,  and  the  land  was  flowed  by  an- 
other company,  it  was  held  that  the  plaintiff  was  not  entitled 
to  redress,  and  Ms  complaint  was  dismissed.  * 

Under  the  act  of  the  State  of  New  York  of  1851,  in  rela- 
tion to  railroad  companies,  such  companies  have  no  right  to 
enter  upon  and  occupy,  or  cross,  a  turnpike  or  plank-road, 
without  the  consent  of  the  owners,  except  upon  the  condition 
of  first  paying  the  damages  sustained  by  the  turnpike  or  plank- 
road  company,  after  the  same  shall  have  been  ascertained  under 
the  statute,  f 

It  may  not  be  amiss  to  sum  up  the  result  of  our  examina- 
tion. If  the  brief  and  sweeping  clause, "  Private  property  shall 
not  be  taken  for  public  use  without  just  compensation"  be  made 
to  express  the  modifications  and  qualifications  which  construc- 
tion has  inserted  in  it  and  added  to  it,  it  will  stand  nearly  as 
follows :  Private  property  shall  in  no  case  be  taken  for  private 
use.  Private  property  may  be  takeji  for  public  use  in  the  exer- 
cise of  the  general  police  powers  of  the  State,  or  of  taxation, 
without  making  compensation  therefor.  And  the  power  of  tax- 
ation includes  the  power  of  charging  the  expense  of  local  im- 
provements exclusively  upon  those  immediately  benefited  thereby. 
Private  property  may  also  be  taken  for  public  use  in  the  exercise 

*  Chase  v.  Sutton  Manufacturing  Co.  4    Road  Co.  v.  The  Buffalo  and  P.  R.  R.  Co.  20 
Cush.  152.  Barb.  644. 

f  The  Ellicottville  and  Great  Valley  Plank- 

11  Wend.  149.  But  if  the  owner  accepts  the  compensation  awarded  for  the  excess, 
he  cannot  afterwards  object  to  the  taking  of  that  excess.  Embury  v.  Conner,  3  N. 
Y.  511. 


474  LAW  OF  THE  LAND. 

of  the  power  of  eminent  domain,  but  not  without  just  compen- 
sation being  made  or  provided  for  before  the  taking  is  absolutely 
consummated.  The  right  of  compensation,  however,  does  not  at- 
tach in  cases  where  the  value  of  property  is  merely  impaired 
and  the  title  to  it  not  divested,  nor  does  it  exist  in  cases  where  the 
right  to  the  property  taken  is  not  absolutely  vested  at  the  time  of 
the  legislative  act  affecting  it.  This  is  substantially  the  form 
that  the  constitutional  provision  has  assumed  in  the  hands  of 
the  courts ;  and  upon  a  careful  examination  of  the  process  by 
which  this  result  has  been  arrived  at,  it  must  be  admitted  that 
in  practice  our  constitutional  guaranties  are  very  flexible  things,, 
and  that  the  judicial  power  exerts  an  influence  in  our  system 
which  makes  the  subject  of  interpretation  one  of  the  first  mag- 
nitude. 

The  Law  of  the  Land,  and  due  Course  of  Law. — We  next 
come  to  the  great  constitutional  provision  which  guarantees  to 
life,  liberty,  and  property  the  protection  of  law.  Magna  Carta 
declares,  "  Nullus  liber  homo  capiatur  vel  imprisonetur,  aut  dis- 
saisietur,  aut  relegatur,  aut  exulatur,  aut  aliquo  modo  destruetur, 
nee  super  eum  ibimus,  nee  super  eum  mittemus,  nisi  per  legate 
judicium  parium  suorum,  vel  PER  LEGEM  TERETE."  *  And  de- 
ducing its  origin  from  this  grand  original,  this  important  lim- 
itation of  legislative  power  is  to  be  found,  I  believe,  without 
exception,  in  the  Constitution  of  all  the  States  of  the  Union,  f 
In  order  to  understand  precisely  how  private  rights  are,  in  this 
respect  secured,  I  give  the  clause  as  it  stands  in  the  fundamental 

law  of  several  of  the  States,  (a) 
3«  V  ' 

*  Magna  Carta,  §  29.  •»  x^i  <r«\*y  *^e  phrases  "  Law  of  the  land  "  and  "  due  proc- 

f  As  to  the  identity  of  meaning  between    ess  of  law,"  see  Mayo  v.  Wilson,  1  N.  H.  R.  55. 

(a)  Constitutional  Provisions. — The  following  are  all  the  provisions  in  the  exist- 
ing State  Constitutions  which,  in  express  terms,  relate  to  "  due  process  of  law  "  or 
"the  law  of  the  land:" 

No  person  shall  be  deprived  of  [his]  life,  liberty,  or  property,  without  [but  by] 
[except  by]  due  process  of  law. — Alabama,  I,  8 ;  Arkansas,  I,  9  ;  California,  I,  8 ; 
Connecticut,  I,  9 ;  Florida,  Dec.  of  Rights,  9 ;  Georgia,  I,  3 ;  Illinois,  II,  2 ;  Iowa,  Ir 
9 ;  Michigan,  VI,  32 ;  Minnesota,  I,  7 ;  Mississippi,  I,  2 ;  Nevada,  I,  8  ;  New  York,  1, 6  ; 
West  Virginia,  III,  10  [adding  "  and  the  judgment  of  his  peers  "].  No  person  shall  be 
accused  or  arrested  or  detained,  except  in  cases  ascertained  by  law,  and  according  to 
the  forms  which  the  same  has  prescribed ;  and  no  person  shall  be  punished  but  by 
virtue  of  a  law  established  and  promulgated  prior  to  the  offence,  and  legally  ap- 


LAW   OF  THE  LAND.  475 

Much  discussion  has  taken  place  in  regard  to  what  is  meant 
by  the  phrase  "  the  law  of  the  land."  Perhaps,  in  most  respects 
there  is  nowhere  to  be  met  with  a  better  definition  of  it  than  is 
to  be  found  in  the  argument  of  Mr.  Webster,  in  the  Dartmouth 
College  case.  "  By  the  law  of  the  land  is  most  clearly  intended 
the  general  law  which  hears  before  it  condemns ;  which  pro- 
ceeds upon  inquiry,  and  renders  judgment  only  after  trial.  The 
meaning  is,  that  every  citizen  shall  hold  his  life,  liberty,  prop- 
erty, and  immunities  under  the  protection  of  general  rules 
which  govern  society.  Every  thing  which  may  pass  under  the 
form  of  an  enactment  is  not  the  law  of  the  land."  (a) 

plied. — Alabama,  I,  9.  No  person  shall  be  arrested,  detained,  or  punished,  except  in 
cases  clearly  warranted  by  law. —  Connecticut,!,  10.  Every  person  [all  persons]  for 
injury  done  him  [suffered]  in  his  lands,  goods,  [property],  person,  or  reputation,  shall 
have  [adequate]  remedy  by  due  process  [course]  of  law. — Kansas,  Bill  of  Rights,  18; 
Louisiana,  1,10;  Nebraska,  1,9;  Ohio,  I,  16  ;  Oregon,  I,  10;  West  Virginia,  III,  17; 
Indiana,  1, 12.  No  person  shall  be  held  to  answer  for  a  criminal  offence  without  due 
process  of  law. —  Wisconsin,  I,  8. 

Nor  shall  [can]  he  be  deprived  of  [his]  life,  liberty,  or  property,  [or  privileges, 
Maine],  unless  [but]  by  the  judgment  of  his  peers  or  the  law  of  the  land. — Delaware, 
I,  7;  Kentucky,  XIII,  12;  Maine,  I,  6;  Missouri,  I,  18;  Pennsylvania,  IX,  9;  Rhode 
Island,  I,  10.  Nor  can  any  person  [no  man  shall]  be  [justly]  deprived  of  his  liberty, 
except  by  the  law  of  the  land  or  the  judgment  of  his  peers. —  Vermont,  Pt.  I,  10; 
Virginia,  I,  10.  No  member  [citizen]  of  [person  in]  this  State  shall  be  disfranchised 
or  deprived  of  any  of  the  rights  or  privileges  secured  to  any  citizen  thereof  ["now 
enjoyed,"  8.  C.],  unless  [a  the  same  is  done,"  Ark.]  by  the  law  of  the  land  or  the 
judgment  of  his  peers  ["  except  as  hereinafter  provided,"  Ark.] — Arkansas,  V,  37 ; 
Minnesota,  I,  2 ;  New  York,  I,  1 ;  South  Carolina,  I,  34. 

No  man  ought  to  [shall]  be  taken,  or  imprisoned,  or  disseized  of  his  freehold, 
liberties,  or  privileges,  or  outlawed,  or  exiled,  or  in  any  manner  destroyed,  or  de- 
prived of  his  life,  liberty,  or  property,  but  by  the  judgment  of  his  peers,  or  by  the 
law  of  the  land. — Maryland,  Dec.  of  Rights,  23;  Tennessee,!,  8;  [same,  except  omit- 
ting the  words  "destroyed"  and  "by  the  judgment  of  his  peers  or"]. — North  Caro- 
lina, I,  17. 

No  subject  [person,  S.  C.]  shall  be  arrested,  imprisoned,  despoiled,  or  deprived 
[dispossessed,  S.  C.]  of  his  property,  immunities,  or  privileges,  put  out  of  the  pro- 
tection of  the  law,  exiled,  or  deprived  of  his  life,  liberty,  or  estate,  but  by  the  judg- 
ment of  his  peers  or  the  law  of  the  land. — Massachusetts,  Pt.  I,  12  ;  New  Hampshire, 
Pt.  I,  15 ;  South  Carolina,  I,  14. 

No  citizen  of  this  State  shall  be  deprived  of  his  life,  liberty,  property,  or  priv- 
ileges, outlawed,  exiled,  or  in  any  manner  disfranchised,  except  by  due  course  of  the 
law  of  the  land.— Texas,  I,  16. 

(a)  Guaranty  of  Due  Process  of  Law. — This  guaranty  secures  a  fair  trial  after  no- 
tice, except  in  certain  matters  of  public  concern,  like  taxation,  where  such  protection 
of  individual  rights  could  only  be  secured  by  a  disproportionate  sacrifice  of  public 


476  LAW   OF   THE  LAND. 

The  same  doctrine  lias  been  declared  in  a  very  elaborate 
case  in  the  State  of  New  York.     An  act  of  that  State  authoriz- 


interests.  The  same  principle,  however,  applies  here  as  in  the  case  of  jury  trial, 
namely,  that  proceedings  and  methods  which  were  in  existence  at  the  common  law, 
or  were  in  existence  by  statute  at  or  before  the  adoption  of  the  Constitution,  are  to 
be  considered  as  a  part  of  the  "due  process  of  law"  required  by  the  Constitution, 
and  as  legal  and  valid  notwithstanding  this  constitutional  guaranty.  Due  process  of 
law  refers  not  to  the  "process"  ~by  which  the  property  is  taken,  but  to  judicial  pro- 
ceedings in  which  it  is  taken ;  such  proceedings  are  not  necessarily  jury  trials. 
Squares  v.  Campbell,  60  Barb.  391 ;  and  it  was  very  concisely  and  accurately  said  by 
Mr.  Justice  Edwards,  in  Westervelt  v.  Gregg,  12  N.  Y.  209,  that  "Due  process  of  law 
undoubtedly  means,  in  the  due  course  of  legal  proceedings,  according  to  those  rules 
and  forms  which  have  been  established  for  the  protection  of  private  rights."  "  Due 
process  of  law  "  means  the  same  as  "  law  of  the  land,"  namely,  that  laws  shall  be  gen- 
eral in  their  operation,  affecting  all  alike.  Sears  v.  Cottrel,  5  Mich.  251.  The  follow- 
ing cases  are  illustrative  of  these  principles.  The  relator,  being  a  private  in  a  militia 
regiment  in  time  of  peace,  was  proceeded  against  before  a  regimental  court  martial 
for  delinquencies,  such  as  absence  from  drill,  and  the  like.  He  was  fined,  and  a  war- 
rant was  issued  by  the  court  to  collect  the  fine  from  his  goods  and  chattels,  and  in 
default  thereof  to  arrest  him  and  confine  him  in  a  jail.  These  proceedings  were  in 
pursuance  of  a  statute.  On  review  by  certiorari  the  statute  was  held  valid,  and  the 
proceedings  were  affirmed.  Courts  martial  in  the  militia  existed  at  the  adoption  of 
the  Constitution,  and  therefore  the  provisions  as  to  jury  trial  aad  due  process  of  law 
do  not  apply  to  them.  People  ex  rel.  Underwood  v.  Daniell,  50  N.  Y.  274,  affirming 
s.  c.  6  Lans.  44.  As  to  the  validity  of  a  statute  allowing  judgment  against  an  absent 
defendant  without  publication,  upon  the  appointment  of  an  attorney  for  him  by  the 
court,  see  Ware  v.  Robinson,  9  Cal.  107.  Laws  allowing  judgment  binding  the  joint 
property  of  joint  debtors  on  service  of  process  upon  one  of  them,  have  been  held  valid. 
Brooks  v.  Mclntire,  4  Mich.  816.  And  a  statute  providing  that  after  judgment 
against  a  corporation,  the  officers  thereof  shall  be  summoned  to  show  cause  why  the 
property  of  individual  stockholders  should  not  be  bound,  instead  of  summoning  the 
stockholders  themselves,  is,  it  seems,  constitutional.  Hampson  v.  Weare,  4  Iowa,  13. 
Also  a  statute  allowing  executors,  etc.,  to  compromise  future  contingent  rights  with 
the  consent  of  the  court,  upon  the  appointment  of  some  suitable  person  to  represent 
such  future  contingent  interests  before  the  court,  was  held  valid.  Clarke  v.  Cordis, 
4  Allen,  466.  A  statute  for  foreclosure  of  mortgages  by  notice  and  sale,  at  least  as  to 
all  mortgages  made  after  the  law  had  gone  into  effect,  was  sustained  in  Boyd  v.  Elles, 
11  Iowa,  97. 

Service  by  publication  in  civil  proceedings  where  personal  service  is  impractica- 
ble, is  due  process  of  law.  In  re  Empire  City  B'k,  18  K  Y.  199;  Hamilton  &c.  Ins. 
Co.  v.  Parker,  11  Allen,  574;  Bond  v.  Hiestand,  20  La.  An.  139;  Mason  v.  Messenger, 
17  Iowa,  261;  Burnam  v.  Commonwealth,  1  Duv.  (Ky.)  210.  But  notice  by  publica- 
tion to  persons  within  the  Confederate  lines  was  held  void  in  Dean  v.  Nelson,  10 
Wai.  159.  This  decision,  however  was  based  upon  the  effect  of  war.  Where  the 
proceeding  is  in  rem  for  forfeiture,  notice  to  the  owner  is  not  indispensable.  Gray  v. 
Kimball,  42  Me.  299 ;  and  see  State  v.  Brennan's  Liquors,  25  Conn.  273.  But  that 
there  must  be  in  such  in  rem  proceedings  some  notice,  actual  or  constructive,  beyond 
the  mere  seizure  itself,  and  some  opportunity  to  defend,  see  Donovan  v.  Vicksburg, 


LAW   OF  THE  LAND.  477 

ing  private  roads  to  be  laid  out  over  the  lands  of  an  owner 
without  his  consent,  provided  for  the  damages  to  be  assessed 

29  Miss.  247 ;  Hibbarcl  v.  People,  4  Mich.  125.  A  lien  law  as  to  vessels  was  held 
void  which  allowed  sale  of  the  vessel  without  personal  notice  or  trial.  Parsons  v. 
Russell,  11  Mich.  113.  But,  per  contra,  a  lien  law  as  to  vessels  was  held  valid,  there 
being  sufficient  constructive  notice  and  opportunity  for  defence.  Happy  v.  Mosher, 
48  N.  Y.  313.  A  statute  of  Michigan  allowing  rafting  and  booming  corporations  to 
be  organized,  with  power  to  take  control  without  consent  of  the  owners  of  logs 
found  on  public  waters,  and  to  assess  their  own  charges  for  such  service,  and  to  sell 
the  logs  to  pay  such  charges,  was  declared  void  as  violating  most  of  the  fundamental 
guaranties  of  private  property.  Ames  v.  Port  Huron  &c.  Co.  11  Mich.  139.  A  stat- 
ute forfeiting  goods,  etc.,  exposed  for  sale  near  religious  meetings,  was  held  void  in 
Pennsylvania,  as  not  providing  for  trial.  Fetter  v.  Wilt,  46  Perm.  St.  457 :  sed  qu., 
for  such  statutes  providing  for  similar  summary  proceedings  are  generally  sustained 
as  proper  police  measures  to  preserve  the  peace.  In  New  York  there  are  certain 
Indian  reservations,  the  title  to  the  land  being  in  the  respective  tribes  without  power 
of  alienation,  and  a  statute  for  the  summary  removal  of  white  squatters  from  such 
reservations  was  held  valid,  on  the  ground  that  they  had  and  could  have,  under  the 
Constitution  and  laws,  no  such  property  or  right  as  is  protected  by  the  constitutional 
guaranty,  such  removal  adjudicating  no  title.  People  v.  Dibble,  1 6  N.  Y.  203.  It 
should  be  remarked  that  this  decision  proceeds  upon  the  peculiar  and  exceptional 
condition  of  the  Indian  lands  in  question,  rather  than  upon  any  general  principles. 

Summary  proceedings  to  enforce  collection  of  taxes  are  valid ;  they  do  not  fall 
within  the  Constitutional  guaranty  from  the  necessities  of  the  case.  High  v.  Shoe- 
maker, 22  Cal.  363  ;  Commonwealth  v.  Byrne,  20  Gratt.  165.  Clauses  as  to  trial  by 
jury,  due  process  of  law,  etc.,  are  not  applicable  to  questions  of  revenue  and  taxation 
between  the  public  and  an  individual.  Statutory  prohibition  of  an  injunction  to 
restrain  collection  of  tax  was  held  valid.  Pullan  v.  Kinsinger,  2  Abb.  C.  C.  94  (§  19 
of  Act  of  July  13,  1866,  as  amended  March  2,  1867, 14  U.  S.  Stat.  at  Large,  152,  475). 
But  a  statute  for  forfeiture  to  the  State  on  default  in  payment  of  taxes  was  held  void 
(Handy,  J.,  dissenting).  Griffen  v.  Mixon,  38  Miss.  424;  Baker  v.  Killy,  11  Minn. 
480 ;  and  see  also  Martin  v.  Snowden,  18  Gratt.  100*  An  act  directing  that  upon 
conviction  for  a  certain  offence  the  defendant  shall  be  adjudged  indebted  to  the  com- 
missioners of  pilotage  in  a  certain  sum,  and  that  judgment  shall  be  entered  for  such 
sum,  though  such  commissioners  are  no  parties  to  the  proceedings,  is  void.  Ex  parte 
Nightengale,  12  Fla.  272.  A  statute  for  collecting  taxes  by  distress  and  sale  of  any 
property  in  the  possession  of  the  person  taxed,  and  giving  the  true  owner  an  action 
against  such  person  was  held  constitutional  by  a  divided  court.  Sears  v.  Cottrell,  5 
Mich.  250. 

A  State  Constitution  provided  that  all  persons  shall  find  "  a  certain  remedy  in  the 
laws."  This  was  held  to  be  violated  by  a  statute  exempting  a  particular  case  from 
the  general  law,  e.  g.,  a  statute  providing  that  no  costs  shall  be  recoverable  in  pro- 
ceedings to  set  aside  certain  tax  assessments  in  a  designated  city.  Durkee  v.  Janes- 
ville,  28  Wise.  464.  The  amendment  of  the  Wisconsin  Constitution,  Art.  I,  §  8,  in 
1870,  strikes  out  the  words  "unless  by  the  presentment  or  indictment  of 'a  grand 
jury,"  and  inserting  the  words  "  without  due  process  of  law,"  so  that  the  section 
reads,  "  no  person  shall  be  held  to  answer  for  a  criminal  offence  without  due  process 
of  law ;"  Held,  that  since  this  amendment  persons  may  be  tried  for  felonies  without 


478  LAW   OF   THE  LAND. 

by  a  jury  of  six  freeholders,  and  declared  that  the  road  should, 
when  laid  out,  be  for  the  use  of  the  applicant  and  his  assigns ; 

the  interposition  of  a  grand  jury.     Rowan  v.  State,  30  Wise.  129.     See  this  case  for 
a  very  elaborate  discussion  of  the  meaning  of  due  process  of  law. 

Unreasonable  Conditions. — The  Legislature  cannot  impose  unreasonable  conditions 
upon  the  assertion  of  rights  to  property  or  person. 

'  Thus  it  has  been  held  that  the  Legislature  cannot  make  payment  of  redemption 
money  a  condition  precedent  to  the  owner's  setting  up  his  paramount  title  against  a 
void  tax  sale.  Conway  v.  Cable,  37  111.  82;  Reid  v.  Tyler,  56  111.  288.  But  a  law 
requiring  defendant  in  an  action  by  holder  of  a  tax  certificate  to  make  deposit  of  the 
tax  was  held  valid.  Smith  v.  Smith,  19  Wise.  615.  And  an  act  requiring  thirty  per 
centum  of  the  taxes  paid  by  the  purchaser  since  the  sale  to  be  paid  by  the  owner  as 
a  condition  of  redemption  from  the  tax  sale,  is  valid.  Mulligan  v.  Hintrager,  18 
Iowa,  170.  And  a  statute  requiring  the  plaintiff  in  ejectment  against  the  holder 
under  a  tax  title,  where  taxes  have  been  paid  and  improvements  made  by  the  latter, 
to  make  an  affidavit  that  he  has  tendered  the  taxes,  costs,  interest  and  value  of  im- 
provements to  the  holder  and  has  been  refused,  as  a  condition  to  prosecuting  the 
action,  was  sustained  in  Pope  v.  Macon,  23  Ark.  644;  Craig  v.  Flanagin,  21  Ark.  319. 
A  statute  prescribing  the  forfeiture  of  twenty-five  per  centum  of  the  amount  of  his 
taxes  as  a  penalty  on  a  delinquent  tax  payer  was  also  upheld  in  Scott  v.  Watkins,  22 
Ark.  556.  AJI  act  requiring  the  whole  land  to  be  sold  irrespective  of  whether  the 
tax  could  be  made  by  a  sale  of  less,  is,  it  seems,  unconstitutional.  Martin  v.  Snow* 
den,  18  Gratt.  100. 

A  statute  requiring  an  oath  of  loyalty  from  attorneys  was  held  valid  in  Cohen  v. 
Wright.  22  Cal.  293 ;  but  see  Cummings  v.  Missouri,  4  Wai.  277 ;  and  Ex  parte  Gar- 
land, Id.  333  ;  and  see,  also,  "  Ex  Post  Facto  Laws." 

Rules  of  Evidence. — Although  the  power  of  the  Legislature  over  rules  of  evidence 
is  a  large  one,  and  extends  in  general  to  their  alteration,  and  to  the  application  of  the 
new  rules  to  existing  suits  and  causes  of  action,  yet  it  cannot  be  so  exercised  as  to 
disturb  vested  rights  of  property  or  to  take  away  property,  for  this  would  be  a  viola- 
tion of  the  guaranty  of  due  process  of  law. 

Thus  the  Legislature  has  no  power  to  make  a  tax  deed  conclusive  evidence  of 
matters  vital  to  the  validity  of  the  proceedings.  Corbin  v.  Hill,  21  Iowa,  70  ;  Abbott 
v.  Lindenbower,  42  Mo.  162 ;  and  see  Wright  v.  Cradlebaugh,  3  Nev.  341.  But  other- 
wise as  to  mere  matters  of  ^regularity,  but  nonessentials.  Hurley  v.  Powell,  31  Iowa, 
64 ;  and  see  note  "  Curative  Statutes." 

A  statute  authorizing  a  judge  in  proceedings  to  restore  records  destroyed  by  fire 
to  rely  upon  his  own  recollection  in  determining  facts,  was  held  invalid  in  Kimball 
v.  Connor,  3  Kans.  414. 

Limiiations  of  Actions. — The  principle  of  limitations  of  actions  cannot  be  so  ap- 
plied by  the  Legislature  as  t®  take  away  property  without  due  process  of  law.  Upon 
this  ground  an  act  making  a  tax  deed  conclusive  after  five  years,  irrespective  of  pos- 
session, was  held  invalid  in  Groesbeck  v.  Seeley,  13  Mich.  329  (Martin,  C.  J.,  dissent- 
ing) ;  Baker  v.  Kelly,  11  Minn.  480;  Harding  v.  Butts,  18  111.  502;  but  see  Newland 
v.  Marsh,  19  111.  376 ;  Stearns  v.  Gittings,  23  111.  387. 

But  certain  laws  based  partly  on  the  doctrine  of  escheats  and  partly  on  the  pre- 
sumptions growing  out  of  a  lapse  of  time,  are  valid,  e.  g.,  a  law  directing  clerks  of 
courts  after  money  has  remained  in  their  offices  a  specified  time  to  the  credit  of  pri- 


LAW   OF  THE   LAND.  479 

and  in  an  action  of  trespass  the  validity  of  this  statutory  pro- 
vision came  up  for  consideration.  The  Constitution  of  the  State, 
as  it  then  stood,  provided,  "  that  no  member  of  this  State  shall 
be  disfranchised  or  deprived  of  any  of  the  rights  or  privileges 
secured  to  any  citizen  thereof,  unless  by  the  law  of  the  land  or 
the  judgment  of  his  peers"  (Cons,  of  1821,  art.  vii,  §  1);  and 
also,  that  "  no  person  shall  be  deprived  of  life,  liberty,  and 
property,  without  due  process  of  law"  (/&.  §  V).  After  show- 
ing that  the  act  worked  a  transfer  of  property  from  one  indi- 
vidual without  his  consent  to  another,  the  Supreme  Court  held 
that  no  such  legislation  was  compatible  with  "  the  law  of  the 
land,"  nor  such  a  proceeding  compatible  with  "  due  process  of 
law."  They  said,  "  The  words  '  by  the  law  of  the  land,'  as  used 
in  the  Constitution,  do  not  mean  a  statute  passed  for  the  pur- 
pose of  working  the  wrong.  That  construction  would  render 
the  restriction  absolutely  nugatory,  and  turn  this  part  of  the 
Constitution  into  mere  nonsense.  The  people  would  be  made 
to  say  to  the  two  Houses,  '  You  shall  be  vested  with  the  legis- 
lative power  of  the  State,  but  no  one  shall  be  disfranchised  or 
deprived  of  any  of  the  rights  or  privileges  of  a  citizen,  unless 
you  pass  a  statute  for  the  purpose.'  In  other  words,  You  shall 
not  do  the  wrong  unless  you  choose  to  do  it."  "  The 

meaning  of  the  section  is,  that  no  member  of  the  State  shall  be 
disfranchised  or  deprived  of  any  of  his  rights  and  privileges, 
unless  the  matter  shall  be  adjudged  against  him  upon  trial  had 
according  to  the  course  of  the  common  law.  It  must  be  ascer- 
tained judicially  that  he  has  forfeited  his  privileges,  or  that 
some  one  else  has  a  superior  title  to  the  property  he  possesses, 
before  either  of  them  can  be  taken  from  him.  It  cannot  be 
done  by  mere  legislation."  Bo,  of  the  phrase  "  due  process  of 
law,"  it  was  said,  "  It  cannot  mean  less  than  a  prosecution  or  a 
suit,  instituted  and  conducted  according  to  the  prescribed  forms 
and  solemnities  for  asserting  guilt  or  determining  the  title  to 
property.  The  same  measure  of  protection  against  legislative 
encroachment  is  extended  to  life,  liberty,  and  property ;  and  if 

vate  persons  to  pay  the  same  into  the  county  treasury.  Deaderick  v.  County  Court, 
1  Cold.  202. 


480  LAW   OF   THE  LAND. 

the  latter  can  be  taken  without  a  forensic  trial  and  judgment, 
there  is  nQ  security  for  the  others.  If  the  Legislature  can  take 
the  property  of  A  and  transfer  it  to  B,  they  can  take  A  himself, 
and  either  shut  him  up  in  prison  or  put  him  to  death.  But 
none  of  these  things  can  be  done  by  mere  legislation.  There 
must  be  due  process  of  law." '  In  North  Carolina  and  Tennes- 
see, the  term  law  of  the  land  has  received  the  same  construc- 
tion, f 

In  New  York,  the  subject  has  been  again  recently  consid- 
ered, in  reference  to  the  temperance  laws.  An  act,  passed  in 
1855  (9th  April),  entitled  An  act  for  the  prevention  of  intem- 
perance, pauperism  and  crime,  declared  substantially  that  in- 
toxicating liquor  should  not  be  sold,  or  kept  for  sale,  except  for 
medical,  sacramental,  chemical,  and  mechanical  purposes ;  and 
a  violation  of  this  provision  was  declared  a  misdemeanor, 
punishable  by  fine  and  imprisonment.  It  was  further  enacted 
that,  upon  complaint  of  a  violation  of  this  prohibition,  liquor 
illegally  kept  should  be  seized,  and  if  found  to  be  kept  in 
violation  of  the  act,  or  if  not  claimed,  should  be  adjudged  for- 
feited and  destroyed.  Proof  of  the  sale  of  liquor  was  to  be 
considered  sufficient  to  sustain  an  averment  of  an  illegal  sale, 
and  proof  of  delivery  to  be  prima,  facie  evidence  of  sale.  No 
person  was  to  be  allowed  to  maintain  an  action  to  recover  for 
any  liquor  sold  or  kept  by  him,  unless  he  could  prove  that  the 
liquor  was  lawfully  sold  or  kept  within  the  act ;  and  finally, 
it  was  declared  that  all  liquors  kept  in  violation  of  tne  act 
should  be  deemed  a  public  nuisance.  Toynbee  and  Berberich 
having  been  found  guilty  of  violating  the  act,  appealed  to  the 
Supreme  Court ;  and  the  act  was  held  to  be  in  conflict  with 
the  constitutional  provision  above  cited.  It  was  considered 
that  the  object  of  the  statute  was  to  prohibit  the  common  and 
ordinary  use  of  a  species  of  property  long  and  familiarly  known ; 
that  liquor  came  clearly  within  the  definition  of  property ;  that 

*  Taylor  v.  Porter,  per  Bronson,  J.,  4  Reed  v.  "Wright,  2  Greene,  Iowa,  22.  In 

Hill,  140.  Nelson,  J.,  dissented,  on  the  ground  Texas,  James  v.  Reynolds,  2  Texas,  251.  In 

of  the  antiquity  of  the  system  of  laying  out  Pennsylvania,  Brown  v.  Heummel,  6  Barr,  87, 

private  roads  in  the  State  of  New  York,  and  and  Ervine's  Appeal,  16  Penn.  R.  256;  Kin- 

the  universal  acquiescence  in  its  propriety.  ney  v.  Beverly,  2  Hen.  &  Munf.  336 ;  Arrow- 

f  Hoke  v.  Henderson,  3  Dev.  12;  Jones  smith  v.  Burlingim,  4  M'Lean  R.  498;  and 

v.  Perry,  10  Ycrg.  59.  See  also,  in  Iowa,  Blackwejl  on  tax  Titles,  27,  34. 


LAW   OF   THE   LAND.  481 

the  prohibition  of  its  sale  worked  a  virtual  deprivation  of 
property ;  that  to  do  this  by  fines,  forfeitures,  and  imprison- 
ment, coupled  with  a  presumption  against  nuisance  was  not 
due  process  of  law ;  that  the  right  of  protection  belonging  to 
the  citizen  was  seriously  impaired  by  requiring  him,  prelimina- 
rily, to  prove  that  the  liquor  was  lawfully  kept ;  that  it  was 
not  competent  for  the  Legislature  to  declare  any  recognized 
species  of  property  a  nuisance;  and  that  the  whole  act  was  void 
as  being  an  arbitrary  interference  with  the  rights  of  property 
guaranteed  by  the  Constitution.* 

Some  other  decisions  may  be  noticed.  The  vested  interest 
of  a  husband  in  a  legacy  bequeathed  to  his  wife  cannot  be  al- 
tered by  subsequent  legislation;  and  the  act  of  1848,  by  which 
it  was  attempted  so  to  operate  retrospectively,  is  unconstitu- 
tional on  the  ground  that  it  takes  away  property  without  due 
process  of  law.^ 

We  have  already  \  had  occasion  to  notice  that  certain  sum- 
mary administrative  proceedings,  have  been  sustained  against 
the  objection  that  they  did  not  conform  to  the  law  of  the  land. 
So,  in  Louisiana,  the  constructive  service  of  a  tax  bill,  by  adver- 
tisement in  the  official  newspaper,  without  any  personal  service 
whatever,  has  been  held  not  to  conflict  with  the  provision  in 
the  State  Constitution  that  "  no  person  shall  be  deprived  of  life, 
liberty  or  property,  without  due  process  of  law."  || 

The  Superior  Court  of  New  Hampshire  has  said,  "  There  is 
no  doubt  of  the  great  fundamental  principle  that  parties  shall 
be  heard  before  judgment  shall  be  passed  against  them ;  but 
when  the  Legislature  have  fixed  the  particular  time  and  manner 

*  People  v.  Berberich  &  Toynbee,  11  ture,  founded  on  considerations  of  public  poll- 
Howard  Pr.  R.  289.  Mr.  Justice  Brown  deliv-  cy  tending  to  promote  the  morals,  health,  and 
ered  the  leading  opinion.  Mr.  Justice  Strong,  safety  of  the  community.  The  whole  discussion 
concurring  with  him,  adverted  to  the  inva-  is  very  able,  and  of  great  interest  to  all  per- 
sion  of  the  rights  of  property  effected  by  the  sons  investigating  the  fundamental  principles 
abolition  of  slavery,  and  observed  that  the  of  our  Government.  The  decision  h^s  been 
question  whether  it  was  competent  for  the  affirmed  on  appeal,  and  has  been  reported 
Legislature  to  prohibit  the  manufacture  of  while  these  p,  ges  are  passing  through  the 
liquors,  was  not  before  them.  Mr.  Justice  press.  Wyneliamer  v.  The  People,  3  Kernan, 
Rockwell  concurred  in  the  reversal  on  a  mi-  378. 

nor  point — that  of  the  defendant  being  tried  at  f  Westervelt  v.  Gregg,  2  Kernan,  202. 

the  speci'il  sessions;  but  dissented  from  his  \  Ante,  p.  303. 

brethren  in  their  general  views  of  the  consti-  ||  City  of  New  Orleans  v.  Cannon,  10  La. 

tutionality  of  the  act,  holding  it  to  be  a  legiti-  Anu.  R.  764. 
mate  exercise  of  the  discretion  of  the  Legisla- 

Sl 


482  TRIAL   BY  JURY. 

of  giving  notice  to  parties,  it  is  not  for  us  to  set  aside  the  stat- 
ute unless  it  is  clearly  unconstitutional."  * 

Trial  by  Jury. — The  trial  by  jury  is  very  dear  to  the  race 
to  which  we  belong.  There  can  hardly  be  named  any  institu- 
tion which  has  survived  so  many  changes,  or  existed  under 
such  various  forms  of  government.  Nullus  liber  homo  capietur, 
vel  imprisonetur,  nisi  per  legate  judicium  parium  suorum,  are 
the  words  of  Magna  Carta,  more  than  six  centuries  ago.  When 
this  country  threw  off  the  Government  of  England,  the  passion- 
ate attachment  of  our  people  to  this  form  of  procedure  was 
repeatedly  and  energetically  declared ;  and  the  Constitution  of 
the  youngest  State  of  the  American  Confederacy  adopts  the 
trial  by  jury  as  a  part  of  its  fundamental  law.  Springing  up 
under  the  feudal  despotism  of  the  Plantagenets,  it  has  survived 
alike  their  rule,  that  of  the  house  of  Tudor,  and  of  the  house 
ot  Stuart,  and  now  flourishes  with  all  its  original  vigor  under 
the  mildest  and  wisest  form  of  monarchy  of  which  history 
makes  mention  ;  while  during  the  same  period,  transplanted  to 
a  different  hemisphere,  it  has  struck  deep  its  roots  into  the  new 
soil,  and  is,  perhaps,  the  most  cherished  institution  of  the  great- 
est exemplar  of  free  and  intelligent  government  that  the  world 
has  ever  seen,  f 

The  following  extracts  from  some  of  the  State  Constitutions, 
will  give  a  sufficient  idea  of  the  manner  in  which  this  institu- 
tion has  been  incorporated  into  the  fundamental  law  of  the  sev- 
eral States.  It  is  proper  to  remark  that  the  clauses  here  given 
apply,  as  a  general  rule,  to  civil  cases,  and  that  the  State  Con- 
stitutions contain  special  provisions  in  regard  to  the  trial  by 
jury  in  criminal  cases,  (a) 

*  "Webster  v.  Alton  &  N.  D.  9  Foster,  369,  to  the  course  of  the  common  law."  And  the 

384.  Declaration  of  Independence,™  its  eloquent  re- 

f  The  Declaration  of  Rights  made  by  the  cital  of  the  causes  of  separation,  commemo- 

first  Continental  Congress,  in  1774,  declares  rates  among  others,  "  acts  of  legislation  for  de- 

that  "  the  respective  colonies  are  entitled  to  priving  us,  in  many  cases,  of  the  benefits  of 

the  £reat  and  inestimable  privilege  of  being  trial  by  jury." — Shepard's  Const.  Ttxt  Book, 

tried  by  their  peers  of  the  vicinage,  according  p.  262. 

(a)  Since  the  text  was  written  great  changes  have  been  made  in  the  organic  law 
of  many  of  the  States.  New  Constitutions  have  been  adopted  and  oldoties  modified. 
The  following  is  a  complete  list  of  all  the  clauses  to  be  found  in  the  present  State 
Constitutions,  directly  referring  to  the  jury  trial,  either  in  criminal  or  in  civil  causes. 


TRIAL   BY  JURY.  483 

The  general  idea  intended  to  be  conveyed  by  the  constitu- 
tional guaranty  of  the  trial  by  jury,  undoubtedly  is,  that  all 

The  dates  of  the  adoption  of  the  existing  Constitutions  are  given.  The  arrangement 
made  will  enable  the  reader  at  a  glance,  to  compare  the  various  provisions,  and  to 
perceive  the  general  model  upon  which  most  of  them  are  formed. 

ProKisions  expressly  relating  to  Criminal  Trials. — "  In  all  criminal  prosecutions,  the 
accused  has  a  right  to  have  *  *  *  •  a  speedy  public  trial  by  an  impartial  jury." — 
Delaware,  1831,  Art.  I,  §  7;  New  Jersey,  1844,  Art.  I,  §  8;  Rhode  Island,  1842,  Art.  I, 
§  10  ;  South  Carolina,  1868,  Art.  I,  §  18  ;  Texas,  1869,  Art.  I,  §  8. 

In  the  following  States  the  provision  is  the  same  with  this  addition,  viz.,  "  of  the 
county  or  district  in  which  the  offence  [or  crime]  shall  have  been  committed ;  "  but 
in  a  few  instances  the  phrase  is,  "of  the  vicinage." — Arkansas,  1868,  Art.  I,  §  8 ; 
Illinois,  1870,  Art.  II,  §  9  ;  Indiana,  1851,  Art.  I,  §  13 ;  Kansas,  1859,  Bill  of  Rights, 
§  10  ;  Louisiana,  1868,  Title  I,  §  6  ["parish"  instead  of  county,  and  with  the  addi- 
tion, "  unless  the  venue  be  changed  "] ;  Maine,  1820,  Art.  I,  §  6  ["  vicinity,"  and  "  ex- 
cept in  trials  by  martial  law  or  impeachment  "] ;  Minnesota.  1857-8,  Art.  I,  §  6  ;  Ohio, 
1850,  Art.  I,  §  10  ["  in  any  trial  in  any  court  "] ;  Oregon,  1857,  Art  I,  §  11. 

In  the  following  States  the  provision,  while  in  other  respects  substantially  the 
same  as  the  foregoing,  guarantees  the  jury  trial  only  "  in  prosecutions  on  indictment 
or  presentment,  or  information."  In  some  of  these  the  jury  must  be  u  of  the  county 
or  district"  or  "  vicinage  ;  "  in  the  others  the  clause  is  silent  upon  that  subject. — 
Alabama,  1868,  Art.  I,  §  8  ["  of  the  county  or  district"];  Connecticut,  1818,  Art.  I, 
§  9;  Kentucky,  1850,  Art.  XIII,  §  12  ["of  the  vicinage"] ;  Mississippi,  1868,  Art.  I, 
§  7  ["  of  the  county  "J ;  Missouri,  1865,  Art.  I,  §  18  ["  of  the  vicinage"] ;  Pennsylva- 
nia, 1838,  Art.  IX,  §  9  ["  of  the  vicinage  "] ;  Tennessee,  1870,  Art.  I,  §  9  ["  of  the 
county"] ;  Wisconsin,  1848,  Art.  I,  §  7  ["  of  the  county  or  district"]. 

In  the  following   States   the   provision   differs   somewhat  from  the  foregoing 
general  models.     Georgia,  1868,  Art.  I,  §  7:    "Every  person  charged  with  an  offence 
against  the  laws,  shall  have  a  public  and  speedy  trial  by  an  impartial  jury,"  and  Art. 
V,  §  4,  v.     "There  shall  be  no  jury  trial  before  the  district  judge,  except  when 
demanded  by  the  accused,  in  which  case  the  jury  shall  consist  of  seven."     (N.  B. — 
This  district  judge  has  jurisdiction  of  all  offences  not  punishable  with  death,  or  im- 
prisonment in  the  State  penitentiary,  and  such  civil  jurisdiction  as  the  Legislature 
may  direct.)     Icwa,  1857,  Art.  I,  §  10,  and  Nebraska,  1867,  Art.  I,  §  7:    "In  all  crim- 
inal prosecutions,  and  in  cases  involving  the  life  or  liberty  of  an  individual,  the 
accused  shall  have  a  right  to  a  speedy  and  public  tri.il  by  an  impartial  jury." 
Maryland,  1867,  Bill  of  Rights,  Art.  21:    il  In  all  criminal  prosecutions,  every  man 
hath  a  right  to  a  speedy  trial  by  an  impartial  jury,  without  whose  unanimous  con- 
sent he  ought  not  to  be  found  guilty."     Massachusetts,  1780,  Bill  of  Rights,  Art.  12: 
The  Legislature  shall  not  make  any  law,  that  shall  subject  any  person  to  a  capital 
or  infamous  punishment,  except  for  the  government  of  the  army  and  navy,  without 
trial  by  jury."     Michigan,  1850,  Art.  VI,  §  28:    "In  every  criminal  prosecution,  the 
accused  shall  have  the  right  to  a  speedy  and  public  trial  by  an  impartial  jury,  which 
may  consist  of  less  than  twelve  men  in  all  courts  not  of  record."     New  Hampshire,  1792, 
Bill  of  Rights,  Art.  16  :  "  Nor  shall  the  Legislature  make  any  law,  that  shall  subject 
any  person  to  a  capital  punishment  (except  for  the  government  of  the  army  and  navy, 
and  militia  in  actual  service),  without  trial  by  jury."     North  Carolina,  1868,  Art.  I, 
§  13 :  "  No  person  shall  be  convicted  of  any  crime,  but  by  the  unanimous  verdict  of  a 


484  TRIAL   BY  JURY. 

contested  issues  of  fact  shall  be  determined  by  a  jury,  and  in 
no  other  way ;  and  this  doctrine  bas  been  very  faithfully  car- 
jury  of  good  and  lawful  men  in  open  court.  The  Legislature  may  however  pro- 
vide other  means  of  trial  for  petty  misdemeanors,  with  the  right  of  appeal."  South 
Carolina,  1868,  Art.  I,  §  14:  "The  General  Assembly  shall  not  enact  any  law  that 
shall  subject  any  person  to  punishment  with  out  trial  by  jury."  Vermont,  1793,  Bill 
of  Rights,  Art.  10 :  "  In  all  prosecutions  for  criminal  offences,  a  person  hath  a  right 
to  call  for  a  speedy  public  trial  by  an  impartial  jury  of  the  county,  without  the  unan- 
imous consent  of  which  jury  he  cannot  be  found  guilty."  Virginia,  1870,  Art.  I,  §  10: 
"  In  all  capital  or  criminal  prosecutions,  a  man  hath  a  right  to  a  speedy  trial  by  an 
impartial  jury  of  his  vicinage,  without  whose  unanimous  consent  he  cannot  be  found 
guilty."  West  Virginia,  1872,  Art.  Ill,  §  14:  "Trials  of  crimes  and  misdemeanors, 
unless  herein  otherwise  provided,  shall  be  by  a  jury  of  twelve  men." 

The  following  are  special  additional  provisions.  "In  all  criminal  cases  whatever, 
the  jury  shtll  have  the  right  to  determine  the  law  and  the  fact." — Indiana,  1851,  Art. 
I,  §  19.  "  In  the  trial  of  all  criminal  cases,  the  jury  shall  be  judges  of  law  as  well  as 
of  fact."— Maryland,  1867,  Art,  XV,  §  5.  "The  Legislature  shall  provide  by  law  a 
suitable  and  impartial  mode  of  selecting  juries  ;  and  their  usual  number  and  unanim- 
ity, in  indictments  and  convictions,  shall  be  indispensable." — Maine,  1820,  Art.  I,  §  7. 
"  All  offences  of  a  less  grade  than  felony,  may  be  prosecuted  upon  complaint  under 
oath,  by  any  peace  officer  or  citizen,  before  any  justice  of  the  peace  or  other  inferior 
tribunal ;  and  the  party  so  prosecuted  shall  have  the  right  of  trial  by  jury,  to  be  sum- 
moned in  such  manner  as  may  be  prescribed  by  law." — Texas,  1869,  Art.  V,  §  17. 

The  Constitutions  of  the  States  not  included  in  the  foregoing  list,  do  not  contain 
any  provisions  expressly  providing  for  jury  trial  in  criminal  cases. 

Provisions  either  general  in  their  Nature  or  expressly  relating  to  Civil  Causes. — In 
the  following  States  the  provision  is  simply,  "the  right  of  trial  by  jury  shall  remain 
inviolate."— Alabama,  1868,  Art.  I,  §  18  ;  Connecticut,  1818,  Art.  I,  §  21 ;  Indiana,  1851, 
Art.  I,  §  20  [with  the  words  "  in  all  civil  cases  "  prefixed] ;  Mississippi,  1868,  Art.  I.  §  12 ; 
Missouri,  1865,  Art.  I,  §  17  ;  Oregon,  1857,  Art.  I,  §  18  [with  the  words  "  in  all  civil 
»cases"  prefixed] ;  Rhode  Island,  1842,  Art.  I,  §  15;  South  Carolina,  1868,  Art.  I,  §  11; 
'Tennessee,  1870,  Art.  I,  §  6;  Texas,  1869,  Art.  I,  §  12. 

In  the  following  States,  the  provision  is  the  same  as  the  one  last  above  quoted, 
-with  the  additions  or  limitations  stated  in  each  case.  "The  right  of  trial  by  jury 
shall  remain  inviojate,  and  shall  extend  to  all  cases  at  law  without  regard  to  the 
amount  in  controversy ;  but  a  jury  trial  may  be  waived  by  the  parties  in  all  cases  in 
the  manner  prescribed  by  law." — Arkansas,  1868,  Art.  I,  §  6 ;  Minnesota,  1857,  Art.  I, 
§  4;  Wisconsin,  1848,  Art.  I,  §  5.  "  Shall  remain  inviolate ;  but  the  Legislature  may 
.authorize  trial  by  a  jury  of  a  less  number  than  twelve  men  in  inferior  courts." — Iowa, 
1857,  Art.  I,  §  9;  Nelrraska,  1867,  Art.  I,  §  5.  "  Shall  remain  inviolate;  but  the 
Legislature  may  authorize  the  trial  of  civil  suits,  when  the  matter  in  dispute  does  not 
exceed  $50,  by  a  jury  of  six  men." — New  Jersey,  1844,  Art.  I,  §  7.  "  Shall  be  secured 
to  all  and  remain  inviolate  forever ;  but  a  trial  by  jury  may  be  waived  by  the  parties 
in  all  civil  cases,  in  the  manner  to  be  prescribed  by  law." — California,  1849-62,  Art.  I, 
§  3  ;  Florida,  1868,  Art.  I,  §  4.  Same  as  the  last,  with  the  following  addition  :  "  And 
in  civil  cases  if  three-fourths  of  the  jury  agree  upon  a  verdict,  it  shall  stand,  and  have 
the  same  force  'and  effect  as  a  verdict  by  the  whole  jury.  Provided,  the  Legislature 
;by  a  law  passed  by  a  two-thirds  vote  of  all  the  members  elected  to  each  branch 


TRIAL   BY  JURY.  485 

ried  out  by  the  judiciary.      Indeed,  it  may  be  claimed  for  them 
as  a  merit  in  this  country,  that  they  have  never  evinced  any 

thereof,  may  require  an  unanimous  verdict  notwithstanding  this  provision." — Nevada, 
1864,  Art.  I,  §  3. 

In  the  following  States  the  provision  differs  somewhat  from  the  foregoing  gen- 
eral models.  "Trial  by  jury  shall  be  as  heretofore." — Delaware,  1831,  Art.  I,  §  4. 
"  The  court  shall  render  judgment  without  the  verdict  of  a  jury,  in  all  civil  cases 
founded  on  contract,  when  an  issuable  defence  is  not  filed  on  oath." — Georgia,  1868, 
Art.  V,  §  3,  iii;  and,  "the  right  of  trial  by  jury,  except  when  it  is  otherwise  provided 
in  this  Constitution,  shall  remain  inviolate." — Ibid.  §  13.  "  The  right  of  trial  by 
jury  as  heretofore  enjoyed,  shall  remain  inviolate ;  but  the  trial  of  civil  causes  before 
justices  of  the  peace,  by  a  jury  of  less  than  twelve  men,  may  be  authorized  by  law." 
Illinois,  1870,  Art.  II,  §  5.  "The  right  of  trial  by  jury  shall  be  inviolate." — Kansas, 
1859,  Bill  of  Rights,  §  5  ;  Ohio,  1850,  Art.  I,  §  5.  "  The  ancient  mode  of  trial  by 
jury  shall  be  held  sacred,  and  the  right  thereof  remain  inviolate,  subject  to  such 
modifications  as  may  be  authorized  by  this  Constitution." — Kentucky,  1850,  Art. 
XIII,  §  8.  "  In  all  civil  suits,  and  in  all  controversies  concerning  property,  the  par- 
ties shall  have  a  right  to  a  trial  by  jury,  except  in  cases  where  it  has  heretofore 
been  otherwise  practiced." — Maine,  1829,  Art.  I,  §  20.  "  The  inhabitants  of  Maryland, 
are  entitled  to  the  common  law  of  England,  and  the  trial  by  jury,  according  to  the 
course  of  that  law."  "  The  parties  to  any  cause  may  subnr't  the  same  to  the  court 
for  determination  without  the  aid  of  a  jury."  "The  right  of  trial  by  jury,  of  all 
issues  of  fact  in  civil  proceedings  in  the  several  courts  of  law  in  this  State,  where 
the  amount  in  controversy  exceeds  the  sum  of  $5,  shall  be  inviolably  preserved." — 
Maryland,  1867,  Dec.  of  Rights,  §  5,  and  Art.  IV,  §  8,  and  Art.  XV,  §  6.  "  In  all 
controversies  concerning  property,  and  in  all  suits  between  two  or  more  persons, 
except  in  cases  in  which  it  has  heretofore  been  other  ways  used  and  practiced,  the 
parties  shall  have  a  right  to  a  trial  by  jury;  and  this  method  of  procedure  shall  be 
held  sacred,  unless  in  causes  arising  on  the  high  seas,  and  such  as  relate  to  mariners 
wages,  the  Legislature  shall  hereafter  find  it  necessary  to  alter  it." — Massachusetts, 
1780,  Dec.  of  Rights,  Art.  15 ;  New  Hampshire,  1792,  Dec.  of  Rights,  Art.  20.  "  The 
Legislature  may  authorize  trial  by  a  jury  of  a  less  number  than  twelve  men."  "  The 
right  of  trial  by  jury  shall  remain,  but  shall  be  deemed  to  be  waived  in  all  civil  cases 
unless  demanded  by  one  of  the  parties,  in  such  manner  as  shall  be  prescribed  by 
law."— Michigan,  1850,  Art.  IV,  §  46,  and  Art.  VI,  §  27.  "  The  trial  by  jury  in  all 
cases  in  which  it  has  been  heretofore  used,  shall  remain  inviolate  forever ;  but  a  jury 
trial  may  be  waived  by  the  parties  in  all  civil  cases,  in  the  manner  to  be  prescribed 
by  law." — New  York,  1846,  Art.  I,  §  2.  "In  all  controversies  at  law  respecting  prop- 
erty, the  ancient  mode  of  trial  by  jury  is  one  of  the  best  securities  of  the  rights  of 
the  people,  and  ought  to  remain  sacred  and  inviolable."  "  In  all  issues  of  fact  joined 
in  any  court,  the  parties  may  waive  the  right  to  have  the  same  determined  by  jury, 
in  which  case  the  finding  of  the  judge  upon  the  facts  shall  have  the  force  and  effect 
of  a  verdict  of  a  jury."— North  Carolina,  1868,  Art.  I,  §  19,  and  Art.  IV,  §  18.  "  Trial 
by  jury  shall  be  as  heretofore,  and  the  right  thereof  remain  inviolate." — Pennsylva- 
nia, 1838,  Art.  IX,  §  6.  "  Where  any  issue  in  fact  proper  for  the  cognizance  of  a  jury 
is  joined  in  a  court  of  law,  the  parties  have  a  right  to  trial  by  jury,  which  ought  to 
be  held  sacred."  "  Trials  of  issues  proper  for  the  cognizance  of  a  jury,  in  the  Su- 
preme and  county  courts,  shall  be  by  jury,  except  when  the  parties  otherwise  agree." — 


486  TRIAL   BY  JURY. 

• 

jealousy  of  the  great  co-ordinate  power  of  the  jury,  and  that 
they  have  always  striven  to  carry  out  the  theory  of  our  system 
in  regard  to  it.(#)  So,  in  Indiana,  where  a  statute  exists  for 

Vermont,  1793,  Dec.  of  Rights,  Art.  12,  and  Part  II,  §  31 .  "  In  controversies  respecting 
property,  and  in  suits  between  man  and  man,  the  trial  by  jury  is  preferable  to  any 
other,  and  ought  to  be  held  sacred." — Virginia,  1870,  Art.  I,  §  13.  "  In  suits  at  com- 
mon law,  when  the  value  in  controversy,  exclusive  of  interest  and  costs,  exceeds  $20, 
the  right  of  trial  by  a  jury  of  twelve  men,  if  required  by  either  party,  shall  be  pre- 
served; except  that  in  appeals  from  the  judgments  of  justices,  a  jury  of  a  less 
number  may  be  authorized  by  law ;  but  in  trials  of  civil  cases  before  a  justice  no 
jury  shall  be  allowed."—  West  Virginia,  1872,  Art.  Ill,  §  13.  The  Constitution  of 
Texas,  1869,  in  addition  to  the  general  formula  already  quoted,  contains  the  follow- 
ing special  provisions :  "  In  all  cases  of  law  or  equity,  when  the  matter  in  contro- 
versy shall  be  valued  at  or  exceed  $10,  the  right  of  trial  by  jury  shall  be  preserved, 
unless  the  same  shall  be  waived  by  the  parties  or  their  attorneys,  except  in  cases 
where  a  defendant  may  fail  to  appear  and  answer  within  the  time  prescribed  by  law, 
and  the  cause  of  action  is  liquidated  and  proved  by  an  instrument  in  writing." — 
Art.  V,  §  16.  "In  all  cases  arising  out  of  a  contract  before  any  inferior  tribunal, 
when  the  amount  in  controversy  shall  exceed  $10,  the  plaintiff  or  defendant  shall, 
upon  application  to  the  presiding  officer,  have  the  right  of  trial  by  jury." — Ibid.  §  25. 
"  In  the  trial  of  all  causes  in  the  District  Court,  the  plaintiff  or  defendant  shall,  upon 
application  made  in  open  court,  have  the  right  of  trial  by  jury,  to  be  governed  by  the 
rules  and  regulations  prescribed  by  law." — INd.  §  26. 

(a)  General  Principles. — While  it  is  very  important,  in  estimating  the  force  and 
effect  of  any  particular  decided  case,  to  ascertain  with  accuracy  the  exact  constitu- 
tional provision  which  the  decision  purports  to  interpret,  yet  there  is  a  general  prin- 
ciple which  the  courts  have  almost  uniformly  recognized  as  the  basis  of  their 
decisions,  and  which  is  in  fact  plainly  expressed  in  most  of  the  State  Constitutions. 
This  fundamental  principle  of  interpretation  is  that  in  general  the  constitutional 
provision  does  not  create,  nor  enlarge,  nor  restrict  the  right  of  trial  by  jury,  but 
retains  it  and  preserves  it  inviolate  in  all  those  classes  of  cases,  civil  and  criminal,  in 
which  it  existed  at  the  time  of  the  adoption  of  the  Constitution.  The  whole  discus- 
sion of  the  subject  consists  in  arranging  and  classifying  the  cases  in  which  this  gen- 
eral principle  has  been  applied,  and  in  ascertaining  the  exceptions  to  its  operation, 
most  of  which  will  be  found  to  have  originated  from  some  peculiar  and  exceptional 
language  of  some  particular  Constitution. 

Civil  Cases. — From  the  list  given  in  a  preceding  note  it  appears  that  in  a  very 
large  majority  of  States  the  operative  words  of  the  general  provision  or  the  provision 
expressly  applying  to  civil  cases  are,  "  the  right  of  trial  by  jury  shall  remain  invio- 
late." This  language  clearly  embodies  the  principle  above  stated,  and  indicates  the 
intent  that  the  clause  is  only  to  apply  to  those  classes  of  cases  in  which  a  jury  was 
employed  at  the  time  of  the  adoption  of  the  Constitution ;  and  this  interpretation 
has  been  uniformly  adopted  by  the  courts.  Stilwell  v.  Kellogg,  14  Wise.  461 ;  Kop- 
pikus  v.  Comm'rs,  16  Cal.  248 ;  Whallon  v.  Bancroft,  4  Minn.  109 ;  Whitehurst  v. 
Cohen,  53  111.  247;  Lake  Erie  &c.  R.  R.  v.  Heath,  9  Ind.  558.  In  all  the  other  States, 
except  three,  the  same  intent  is  stated  in  yet  plainer  language,  and  the  guaranty  of 
the  right  is  expressly  limited  by  such  phrases  as  "  as  heretofore  used  in  this  State," 
"  shall  be  as  heretofore,"  and  the  like.  See  Fire  Department  v.  Harrison,  2  Hilt.  (N. 


TRIAL  BY  JURY.  487 

the  relief  of  l>ona  fide  occupants  of  land  who  make  improve- 
ments while  holding  under  a  title  which  proves  defective.  In 

Y.)  455 ;  Harper  v.  Comm'rs.  23  Geo.  566.  In  three  States  alone  this  limitation  is 
not  expressed,  nor  implied  by  or  from  .any  other  language  than  the  very  phrase 
"  right  of  trial  by  jury,"  itself:  namely,  Kansas  and  Ohio,  "  the  right  of  trial  by  jury 
shall  be  inviolate,"  and  in  Vermont.  The  same  interpretation,  however,  13  given  to 
the  former  of  thes,e  clauses,  Kimball  v.  Connor,  3  Kans.  415 ;  and  in  Vermont  imme- 
morial usage  is  looked  to  in  order  to  determine  in  what  cases  a  jury  trial  is  to  be  al- 
lowed. Plimpton  v.  Somerset,  33  Vt.  283. 

It  would  seem  that  the  three  classes  of  provisions  thus  pointed  out  necessarily  mean 
one  and  the  same  thing;  that  whether  we  say  "shall  be  inviolate,"  or  "shall  remain 
inviolate,"  or  "  shall  remain  in  all  cases  in  which  it  has  heretofore  been  used,"  the 
rule  of  interpretation  must  be  the  same.  This  is  so  because  the  guaranty  does  not 
lie  in  the  words  "  shall  be,"  "shall  remain,"  and  the  like,  but  in  the  very  phrase 
"  right  of  trial  by  jury,"  itself.  This  phrase,  as  it  alone  states  the  right,  contains  the 
extent  and  limitation  of  the  right.  It  is  the  right  of  trial  by  jury  which  exists  and 
is  preserved,  and  what  that  right  is  is  a  purely  historical  question,  a  fact  to  be  ascer- 
tained like  any  other  social,  legal  or  political  fact.  As  a  Constitution  speaks  from 
the  time  of  its  adoption,  the  fact  of  the  right  to  jury  trial,  which  is  ascertained  to 
have  existed  at  that  time,  must  necessarily  determine  the  meaning  of  the  clause 
which  recognizes  and  preserves  that  right.  The  courts  seem,  with  great  unanimity, 
to  have  accepted  this  general  principle  of  construction,  and  not  to  have  rested  their 
decisions  upon  the  special  language  of  the  clause  under  consideration. 

Where  there  have  been  two  or  more  successive  Constitutions  of  the  same  State, 
and  the  court  is  called  upon  to  interpret  and  apply  this  clause  as  it  stands  in  the  ex- 
isting Constitution — that  is,  in  the  last  one  of  the  series — the  question  might  arise, 
whether  the  practice  as  to  jury  trials  at  the  time  of  the  adoption  of  that  Constitution, 
or  the  practice  at  the  time  of  the  adoption  of  the  first  or  some  former  one  of  the 
series,  was  to  be  resorted  to  in  order  to  ascertain  the  limits  and  application  of  the 
clause.  It  has  been  held  in  New  York  that  the  practice  at  and  immed'ately  preced- 
ing the  adoption  of  the  last  existing  Constitution  was  to  be  resorted  to,  and  not  that 
at  the  time  of  the  adoption  of  a  prior  one,  although  there  might  be  an  essential 
difference  in  the  practice  at  these  two  epochs.  "Wynehamer  v.  People,  1 3  N.  Y. 
378. 

Criminal  Oases. — By  referring  to  the  list  contained  in  the  preceding  note,  it  will 
be  seen  that  the  general  formula  is,  "  in  all  criminal  prosecutions,"  or  "  in  prosecu- 
tions on  indictment,  presentment,  or  information,"  "  the  accused  hath  a  right  to  have 
a  speedy  public  trial  by  an  impartial  jury."  Where  the  provision  departs  from  this 
usual  model,  the  variation  does  not  generally  indicate  an  intent  to  make  the  guaranty 
more  stringent  and  inclusive.  The  fundamental  principle  of  interpretation,  already 
stated,  has  also  been  applied  with  great  uniformity  to  these  clauses.  The  general 
rule  is  settled,  that  those  crimes  and  offences,  or  classes  of  crimes  and  offences,  which 
at  the  time  of  the  adoption  of  a  Constitution  were  either  triable  without  a  jury  at 
all  or  without  a  full  common-law  jury,  are  not  embraced  within  the  constitutional 
guaranty,  and  may  be  tried  in  such  manner  as  the  Legislature  shall  prescribe.  The 
numerous  cases  hereinafter  cited  either  explicitly  state  or  impliedly  assume  this 
doctrine.  The  few  exceptions,  apparent  or  real,,  will  be  found  to  rest  upon  some 
peculiar  language  of  the  Constitution  they  interpret.  Thus  in  Work  v.  State,  2  Ohio, 


488  TRIAL   BY    JURY. 

cases  of  this  class,  where  the  bona  fide  occupant  has  put 
improvements  on  his  land,  and  a  superior  title  is  established 

N.  S.  296,  it  was  held  that  a  statute  permitting  persons  charged  with  assault  and 
battery  to  be  tried  in  the  Probate  Court  by  a  jury  of  six  was  invalid  ;  but  the  decis- 
ion was  chiefly  placed  upon  the  very  language  of  the  Constitution  which  says  that 
"  in  any  trial  in  any  court  the  accused  shall  be  allowed  a  trial  by  an  impartial  jury." 
But  the  court  expressly  recognized  the  general  principle  above  stated,  and  carefully 
guarded  their  judgment  from  even  seeming  to  attack  it,  by  saying  (p.  308):  "We  do 
not  intend  to  imply  a  doubt  of  the  constitutionality  of  the  act  allowing  juries,  before 
justices  of  the  peace,  composed  of  six  men.  Whenever  facts  are  to  be  found  in  any 
proceeding  in  which  a  jury  was  not  required  by  the  common  law,  a  jury  of  any  num- 
ber may  be  authorized." 

The  principle  of  interpretation  thus  stated  has  been  accepted  as  general  and  fun- 
damental. The  practical  difficulty  has  arisen  in  its  application.  As  the  ultimate 
test  and  limit  of  the  constitutional  guaranty  is  to  be  found  in  a  historical  fact,  some 
discrepancy  of  judicial  decision  has  necessarily  arisen  from  a  diversity  in  the  early  or 
original  practice  in  different  States,  in  reference  to  jury  trials  in  particular  instances. 
The  further  discussion  of  the  subject  consists  in  ascertaining  how  the  principle  has 
been  applied  in  various  proceedings  civil  and  criminal,  and  this  will  give  the  partic- 
ular rules  and  doctrines,  and  will  define  the  practice,  extent  and  limitations  of  the 
guaranty  as  it  has  been  definitely  interpreted.  The  various  proceedings,  civil  and 
criminal,  will  be  separately  arranged  and  stated. 

Certain  classes  of  civil  judicial  proceedings  were,  by  the  common  law  of  England 
and  of  the  several  States,  always  carried  on  without  the  intervention  of  a  jury.  Cer- 
tain other  proceedings  analagous  to,  or  modifications  of,  these  last  have  from  time  to 
time  been  created  by  statute.  Again,  certain  special  proceedings,  civil  in  their 
nature,  utterly  unknown  at  the  common  law,  have  been  invented  by  the  State  Legis- 
latures. Again,  at  the  common  law  certain  minor  offences  were  triable  in  inferior 
courts  without  a  jury ;  and  the  State  Legislatures  have  created  new  offences  analagous 
to  or  modifications  of  these.  Finally,  civil  causes  involving  a  limited  amount,  have 
been  tried  in  inferior  courts  of  the  States — generally  before  justices  of  the  peace — 
without  the  full  common-law  jury.  This  broad  generalization  embraces  most  of  the 
cases  which  have  given  rise  to  questions  as  to  the  extent  and  limitations  of  the  con- 
stitutional guaranty.  We  will  examine  them  separately  and  in  detail. 

Equity  Suits. — As  no  jury  was  requisite  in  equity,  so  the  right  to  a  jury  trial  does 
not  exist  in  equity  suits  where  the  remedy  was  in  equity  prior  to  the  adoption  of  the 
Constitution,  even  though  the  proceeding  (e.  g.,  a  foreclosure  suit)  may  have  some  of 
the  features  of  an  action  at  law  and  may  end  in  a  personal  judgment,  and  even 
though  the  equity  and  the  common-law  jurisdictions  and  procedures  may  have  been 
amalgamated.  Stilwell  v.  Kellogg,  14  Wise.  461 ;  Conn.  &c.  Ins.  Co.  v.  Cross,  18 
Wise.  109. 

The  same  is  true  of  statutory  proceedings  in  relation  to  matters  which,  prior  to 
the  Constitution,  were  within  the  jurisdiction  of  equity:  among  these  are  statutory 
proceedings  for  the  winding  up  of  insolvent  corporations,  Sands  v.  Kirnbark,  27  N.  Y. 
147  ;  Matter  of  Empire  City  Bank,  18  jST.  Y.  199 :  statutory  proceedings  for  the  enforc- 
ing liens  for  supplies,  &c.,  on  ships,  since  the  lien  might  have  been  enforced  in  equity. 
Sheppard  v.  Steele,  43  N.  Y.  52 ;  s.  c.  3  Lans.  417.  The  rule  seems  to  be,  that  if,  in 
addition  to  the  original  equity  jurisdiction,  the  Legislature  gives  the  same  or  a  sim- 


TRIAL  BY  JURY.  489 

against  him,  if  he  is  willing  to  pay  for  the  value  of  the  land 
without  the  improvements,  the  successful  claimant  cannot  ob- 

ilar  remedy  through  means  of  a  statutory  proceeding,  the  latter  proceeding  is  still 
essentially  an  equitable  one,  and  a  provision  for  a  jury  trial  is  not  essential. 

But  the  jurisdiction  of  equity  cannot,  under  color  of  statutory  amendments  or 
proceedings,  be  extended  by  the  Legislature  so  as  to  embrace  matters  which,  at  the 
adoption  of  the,  Constitution,  were  common-law  rights,  and  within  the  exclusive 
jurisdiction  of  common-law  courts,  so  as  to  cut  off  the  right  of  trial  by  jury.  North 
Penn.  &c.  Co.  v.  Snowden,  42  Penn.  St.  488;  Tabor  v.  Cook,  15  Mich.  322. 

In  some  States  the  language  of  the  provision  is,  "  the  right  of  trial  by  jury  shall 
remain  inviolate,  and  shall  extend  to  all  cases  at  law"  &c.,  as  in  Arkansas,  Minnesota, 
and  Wisconsin.  Under  this  clause  it  has  been  held,  in  Wisconsin,  that  the  appoint- 
ment of  a  guardian  of  an  insane  person  is  not  within  the  guaranty,  and  the  proceed- 
ing therefor  does  not  require  a  jury  trial.  Gaston  v.  Babcock,  C  Wise.  503. 

But,  on  the  other  hand,  in  New  Hampshire,  where  there  is  an  express  exception 
of  "  cases  wherein  it  has  been  heretofore  otherwise  used  and  practiced,"  it  is  held 
that  a  party  to  a  suit  in  equity  has  a  constitutional  right  to  a  jury,  if  demanded  at  a 
proper  time.  Hoit  v.  Burleigh,  18  N.  H.  389.  But  this  is  purely  exceptional,  and 
must  depend  upon  an  early  practice  in  that  State  peculiar  to  itself. 

Statutory  Proceedings. — It  has  been  held  that  all  statutory  proceedings  and  rights 
which  did  not  exist  at  the  common  law  are  without  the  guaranty.  The  doctrine 
lying  at  the  bottom  of  these  decisions  is,  that  the  guaranty  applies  only  to  rights  and 
proceedings  which  existed  at  the  common  law,  and  does  not  apply  to  any  proceed- 
ings created  by  statute,  even  though  the  statute  existed  and  was  in  force  at  the 
adoption  of  the  Constitution,  and  provided  for  a  jury  trial,  e.  g.,  statutory  proceed- 
ings for  the  restoration  of  records  destroyed  by  fire.  Kimball  v.  Connor,  3  Kans.  414. 

On  the  contrary,  in  New  York,  where  the  right  of  jury  trial  extends  "to  all  cases 
in  which  it  has  been  heretofore  used,"  these  words  have  been  held  to  be  generic  and 
to  cover  statutory  additions  made  since  the  adoption  of  the  Constitution  to  the 
classes  of  cases  in  which  jury  trial  was  in  use  at  the  time  of  such  adoption,  e.  g.,  an 
action  for  removal  of  buildings  erected  contrary  to  building  acts.  Fire  Department 
v.  Harrison,  2  Hilt.  455.  This  doctrine  was  well  stated  in  Wynehamer  v.  People,  1 3 
N.  Y.  426 :  u  The  expression  in  all  cases  in  which  it  has  heretofore  been  used  is 
generic.  It  does  not  limit  the  right  to  the  mere  instances  in  which  it  had  been  used, 
but  extends  it  to  such  new  and  like  cases  as  might  afterwards  arise.  For  instance, 
felonies  were  triable  only  by  jury ;  I  do  not  doubt  that  all  new  felonies  must  be  tried  in 
that  way,  and  that  by  force  of  this  section."  Per  A.  S.  Johnson,  J.  Though  this  refers 
to  the  language  of  the  N.  Y.  Constitution,  yet  it  expresses  a  general  principle,  and  is 
applicable  to  the  provisions  found  in  most,  if  not  all,  the  State  Constitutions.  The 
rule  thus  laid  down  in  New  York  is  undoubtedly  part  of  the  constitutional  law  of 
the  land.  The  protection  of  jury  trial  is  not  limited  to  proceedings  which  existed 
at  the  common  law,  nor  to  the  mere  instances  in  which  it  existed  when  a  -.particular 
Constitution  was  adopted ;  it  extends  to  and  embraces  all  the  instances  and  species 
of  the  classes  of  cases  in  which  it  was  used  at  that  time.  J.f  this  be  not  the  correct 
interpretation — if  the  doctrine  of  the  Kansas  case  be  accepted — it  would  be  easy  for 
a  Legislature  to  practically  abolish  the  jury  trial,  and  annul  the  right  to  it. 

In  Vermont  it  is  held  that  the  guaranty  extends  to  all  cases  fit  to  le  tried  "by  a 
jury  according  to  the  course  of  the  common  law,  although  the  cause  of  action  arise 


490  TRIAL   BY  JURY. 

tain  possession  until  he  pays  the  value  of  the  improvements 
made  by  the  occupant.  But  where  a  statute  of  this  kind  pro- 

on  a  statute  passed  since  the  adoption  of  the  Constitution ;  and  this  is  simply  stating 
the  same  doctrine  in  another  form.  Plimpton  v.  Somerset,  33  Vt.  283. 

Special  Proceedings,  Private. — Certain  special  proceedings,  although  brought  to 
enforce  rights  purely  private,  have  been  held  in  different  States  not  to  be  embraced 
within  the  guaranty ;  but  in  many  other  States  the  practice  is  very  different.  Among 
these  are,  Mandamus  :  State  ex  rel.  v.  Sharswood,  15  Minn.  221 ;  Divorce  :  Coffin  v. 
Coffin,  55  Me.  361 ;  Contested  Elections:  Ewing  v.  Filley,  43  Penn.  St.  384 ;  Contempt 
of  Court,  though  out  of  the  presence  of  the  court,  e.g  .,  tampering  with  a  juror :  State 
v.  Doty,  3  Vroom  (N.  J.)  403.  But  in  Iowa  a  statute  was  held  invalid  which  pro- 
vided for  the  examination  of  an  execution  debtor  and  for  an  order  that  he  deliver 
up  to  the  creditor  any  non-exempt  property  discovered  by  the  examination,  and  em- 
powered the  court  to  punish  a  refusal  on  his. part  to  answer  or  to  deliver  as  a 
"  contempt."  Ex  parte  Grace,  12  Iowa,  208.  But  this  decision  is  probably  excep- 
tional; for  a  similar  statute  exists  in  many  States  (in  most  of  those  which  have 
adopted  the  N.  Y.  Code  of  Procedure),  and  seems  to  have  raised  no  objection. 

Special  Proceedings,  Public. — Certain  summary  proceedings  or  inquisitions  by  the 
State  have  generally  been  held  not  to  be  within  the  guaranty,  e.  g.,  tax  proceedings. 
Crandall  v.  James,  6  R.  I.  144 ;  Harper  v.  Commrs.  23  Geo.  566. 

In  several  of  the  States  proceedings  under  the  right  of  eminent  domain,  even 
though  the  right  be  delegated  to  corporations  or  individuals  (e.  g. ,  proceedings  to 
take  land  for  railroads),  have  also  been  held  not  to  be  covered  by  the  guaranty,  and 
therefore  statutes  are  held  valid  which  provide  for  assessment  of  compensation  by 
appraisers  or  commissioners,  rather  than  by  a  jury.  This  seems  now  to  be  the  gener- 
ally received  doctrine,  although  not  universally  accepted.  In  New  York  the  present 
Constitution  (of  1846)  expressly  provides  for  commissioners,  but  the  courts  had  so 
held  prior  to  1846.  Hegeman  v.  Blake,  19  Cal.  579  ;  Donberger  v.  Reed,  11  Ind. 
420 ;  Beekman  v.  Saratoga  &c.  R.  R.  3  Paige,  45 ;  Livingston  v.  Mayor,  8  Wend.  85 ; 
Backus  v.  Lebanon,  11  N.  H.  19;  Buffalo  Bayou  &c.  R.  R.  v.  Ferris,  26  Tex.  588.  In 
the  last  case  the  court  said  (p.  599):  "The  Constitution  does  not  apply  to  the  case 
of  taking  private  property  for  public  purposes,  but  to  suits  in  courts  of  justice,  to 
some  known  and  fixed  mode  of  judicial  proceeding  for  the  trial  of  issues  of  fact  in 
civil  and  criminal  cases  in  courts  of  justice."  This  language  seems  to  be  too  broad 
and  sweeping,  as  it  restricts  the  right  of  jury  trial  to  "  suits"  and  "cases,"  and  de- 
nies it  in  any  and  all  "  proceedings  "  which  do  not  fall  within  either  of  those  denom- 
inations. A  jury  is  necessary.  Lake  Erie  &c.  R.  R.  v.  Heath,  9  Ind.  558. 

Enlarging  Jurisdiction  of  Inferior  Courts. — Where  justices'  courts,  acting  without 
a  jury,  or  with  a  jury  of  less  than  twelve,  were  in  existence  at  the  time  of  the  adop- 
tion of  the  Constitution,  with  a  certain  defined  jurisdiction,  it  has  been  repeatedly 
held  in  many  States  that  additional  jurisdiction  as  to  amount  may  be  subsequently 
conferred,  and  especially  when  their  jurisdiction  has  been  from  time  to  time  enlarged. 
Dawson  v.  Horan,  51  Barb.  459  ;  People  v.  Lane,  55  Barb.  168 ;  Knight  v.  Campbell, 
62  Barb.  16  ;  Curtiss  v.  GiU,  34  Conn.  49 ;  Guile  v.  Brown,  38  Conn.  237 ;  Hapgood 
v.  Doherty,  8  Gray,  373 ;  Norton  v.  McLeary,  8  Ohio,  N.  S.  205.  But  the  substantial 
right  must  not  be  impaired.  Ibid.  As  statutes  enlarging  jurisdiction  of  justices' 
courts  frequently  give  a  right  of  appeal,  for  additional  cases  under  this  head  see 
"  Appeal,"  post. 


TRIAL  BY  JURY.  491 

videtl   that  the  value  of  the  improvements,  and  of  the  land 
without  the  improvements,  should  be  assessed  by  three  persons 

Appeal. — Statutes  giving  additional  civil  jurisdiction  to  inferior  courts,  or  making 
offences  triable  before  such  courts  without  a  jury,  or  without  a  common-law  jury, 
frequently  provide  for  an  appeal  to  a  higher  court  with  a  common-law  jury.  Such 
statutes  have  generally  been  held  valid  on  the  ground  that  they  practically  preserve 
the  right  of  a  jury  trial.  State  v.  Beneke,  9  Iowa,  203 ;  State  v.  Brennan's  Liquors, 
25  Conn.  278;  Gaston  v.  Babcock,  6  Wise.  503  ;  Jones  v.  Robbins,  8  Gray,  329 ;  Nor- 
ristown  &c.  Co.  v.  Burkett,  26  Ind.  53;  Haines  v.  Levin,  51  Penn.  St.  412;  Bryan  v. 
State,  4  Iowa,  349 ;  Beers  v.  Beers,  4  Conn.  535.  And  the  same  has  been  generally 
held  even  though  the  statute  require  a  bonder  bail  with  surety  on  the  appeal,  in  order 
to  make  it  effectual.  Hapgood  v.  Doherty,  8  Gray,  373 ;  Morford  v.  Barnes,  8  Yerg. 
444 ;  Stewart  v.  Mayor,  7  Md.  500.  But  on  the  contrary  it  has  been  held  in  Minne- 
sota, that  such  a  statute  requiring  surety  was  invalid,  the  court  expressly  stating, 
however,  that  if  the  right  of  appeal  had  been  made  absolute  and  unrestricted,  the 
constitutional  guaranty  would  not  hare  been  violated.  -State  v.  Everett,  14  Minn. 
439.  See  also  People  v.  Carrol,  3  Park.  Cr.  22. 

Where  there  is  a  right  of  appeal  to  a  jury,  and  also  a  statutory  mode  of  revision 
without  a  jury,  one  who  takes  advantage  of  the  latter  cannot  complain.  Des  Moines 
v.  Layman,  21  Iowa,  153. 

Minor  Offences  and  Quasi  Criminal  Proceedings. — Minor  offences  have  been  very 
generally  held  not  to  be  embraced  within  the  constitutional  guaranty.  The  reason 
is  two-fold :  (1)  beause  at  the  common  law  many  such  offences  were  triable  in 
inferior  courts  without  a  jury,  and  this  practice  prevailed  in  most  States  at  the  adop- 
tion of  their  Constitutions;  and  (2)  because  many  such  offences  have  been  created  by 
statute.  There  is,  however,  a  considerable  discrepancy  among  the  decisions  of  the 
different  States  on  this  subject,  growing  partly  out  of  diversity  in  the  early  practice 
of  trying  such  offences,  and  partly  out  of  the  peculiar  language  of  the  Constitution. 
The  following  are  some  illustrations  of  this  doctrine:  A  statute  authorizing  persons 
charged  with  petit  larceny  to  be  tried  in  the  special  sessions  without  a  jury,  held 
valid  because  similar  statutes  existed  at  the  adoption  of  the  Constitution.  Murphy 
v.  People,  2  Cow.  815;  People  v.  Goodwin,  5  Wend.  251.  The  same  as  to  disorderly 
persons.  Duffy  v.  People,  6  Hill,  75  ;  Plato  v.  People,  3  Parker  Cr.  586.  The  same 
as  to  enforcing  a  municipal  ordinance  by  a  short  imprisonment  or  a  small  fine.  Mc- 
Gear  v.  Woodruff,  4  Vroom  (N.  J.)  213,  the  court  saying  the  constitutional  guaranty 
"  was  not  intended  to  introduce  a  trial  by  jury  in  cases  where  it  did  not  exist  before." 
In  Louisiana,  where  the  Constitution  contained  a  general  guaranty  of  trial  by  jury, 
and  also  in  another  clause  provided  for  the"  trial  of  certain  minor  offences  before  mu- 
nicipal officers,  it  was  held  that  such  offences  were  excepted  from  the  general  guar- 
anty. State  v.  Gutierrez,  15  La.  Ann.  190;  State  v.  Noble,  20  La.  Ann.  325.  And 
where  there  is  no  express  provision  of  the  Constitution  as  to  minor  offences,  the 
guaranty  must  be  construed  with  reference  to  statutes  in  force  at  the  time  of  the 
adoption  of  the  Constitution,  and  the  trial  of  minor  offences  before  inferior  tribunals 
according  to  the  analogy  of  such  statutes,  is  not  prohibited  by  the  constitutional 
provision  preserving  the  jury  trial.  Byers  v.  Commonwealth,  42  Penn.  St.  89.  In 
Ohio  no  jury  is  necessary  in  statutory  proceedings  for  the  commitment  of  a  minor  to 
a  reformatory  institution.  Prescott  v.  State,  19  Ohio,  N.  S.  184. 

But  while  this  doctrine  is  established  as  a  part  of  the  general  constitutional  law 


492  TRIAL  BY  JURY. 

to  "be  appointed  by  the  court,  it  was  held  that  this  part  of  the 
law    was   unconstitutional  and  void,  on  the  ground  that  the 

of  the  States,  statutes  have  very  frequently  been  pronounced  void,  because,  while 
professing  to  be  founded  upon  the  same  principle,  they  in  fact  exceeded  and  violated 
it.  The  following  are  some  illustrations :  The  provisions  of  a  prohibitory  liquor  law 
(so  called)  which  allowed  offences  against  it  to  be  tried  in  the  special  sessions  with- 
out a  jury,  or  with  a  jury  of  six,  were  held  void,  because  at  the  time  of  the  adoption 
of  the  Constitution  misdemeanors  by  violation  of  the  excise  laws  were  triable  only  in 
the  general  sessions  or  Oycr  and  Terminer.  Wyneharner  v.  People,  13  N.  Y.  378, 
472,  484.  Again,  it  is  held  that  the  Legislature  may  add  new  offences  of  the  same 
grade  or  class  as  those  triable  without  a  jury  at  the  adoption  of  the  Constitution — 
e.  g.,  disorderly  persons — and  may  make  them  triable  in  the  same  manner ;  but  can- 
not prescribe  such  a  method  of  trial  for  what  was  at  the  cominom  law  an  indictable 
offence — e.  g.,  the  keeping  a  house  of  ill  fame.  Warren  v.  People,  3  Park.  Cr.  544. 
A  statute  of  Rhode  Island  making  the  right  to  a  jury  in  a  particular  criminal  case 
(violation  of  a  prohibitory  liquor  law)  to  depend  upon  the  accused  giving  a  bond, 
with  surety,  for  the  payment  of  the  penalty  and  costs,  was  declared  invalid.  Greene 
v.  Briggs,  1  Curtis  C.  C.  311.  In  Ohio  a  statute  providing  for  the  trial  of  prosecu- 
tions for  assault  and  battery  and  similar  minor  offences  before  the  Probate  Court 
with  a  jury  of  six,  was  held  void.  This  has  sometimes  been  called  a  leading  case, 
but  the  decision  was  avowedly  based  upon  the  special  language  of  the  Ohio  Consti- 
tution, viz.,  "  in  any  trial  in  any  court  the  accused  shall  be  allowed,"  &c.  Work  v. 
State,  2  Ohio,  N.  S.  296.  For  further  cases  in  which  statutes  authorizing  summary 
criminal  and  quasi  criminal  prosecutions  in  inferior  courts  have  been  held  invalid, 
because  they  did  not  provide  for  jury  trial,  see  Burns  v.  Le  Grange,  17  Tex.  415 ; 
Smith  v.  San  Antonio,  17  Tex.  643;  Bullock  v.  Geomble,  45  111.  218;  Thomas  v.  Ash- 
Lmd,  12  Ohio,  N.  S.  124  (municipal  ordinance);  Donovan  v.  Vicksburg,  29  Miss. 
247  (summary  seizure  and  sale  of  animals  running  at  large) ;  People  v.  Carrol,  3 
Park.  Cr.  22  (statute  impairing  right  of  party  carried  before  a  justice  to  give  bail  for 
appearance  before  a  court  with  a  jury) ;  Warren  v.  People,  3  Park.  Cr.  544  (statute 
for  summary  punishment  of  keepers  of  houses  of  ill  fame).  But  a  statute  providing 
that  keepers  of  houses  reputed  to  be  houses  of  ill  fame  may  be  required  to  give 
sureties,  &c.,  is  valid.  State  v.  Maine,  31  Conn.  572.  A  statute  authorizing  judg- 
ment by  the  Probate  Court,  without  a  jury,  on  charges  of  embezzlement,  &c.,  pre- 
ferred by  administrators,  was  held  void.  Howell  v.  Fry,  19  Ohio,  N.  S.  556.  It  has 
been  held  in  New  York  that  a  member  of  a  militia  regiment  may  be  fined  and  im- 
prisoned by  a  court  martial  in  time  of  peace.  People  v.  Daniell,  50  N.  Y.  274 ;  6 
Lans.  44. 

In  Vermont  the  constitutional  guaranty  extends  to  minor  offences.  -State  v.  Peter- 
son, 41  Vt.  504. 

Preliminary  Proceedings. — Proceedings  preliminary,  or  those  which  do  not  deter- 
mine the  right,  are  not  embraced  within  the  guaranty ;  e.  <7.,  an  act  authorizing  the 
arrest  of  one  illegally  transporting  liquor,  and  the  detention  of  the  liquor,  &c ,  with- 
out warrant  until  warrant  can  be  procured,  on  complaint  made  for  the  trial  of  such 
person,  &c..  is  not  invalid  on  the  ground  that  it  authorizes  arrest  and  detention  with- 
out making  provision  for  trial  by  jury.  Jones  v.  Root,  6  Gray,  435.  Also  an  insolvent 
law  authorizing  the  seizure  of  property  on  warrant  is  valid,  the  proceeding  being  pre- 
liminary, and  not  determining  the  rights  of  the  party.  O'Neil  v.  Glover,  5  Gray,  144. 


TRIAL   BY  JUSV.  493 

assessment  should   be  made  by  a  jury;  and  the  court  said, 
"Where  facts  are  to  be  found,  or  the  value  of  property  assessed, 

Constitution  of  the  Jury,  and  Incidents  of  the  Trial  ly  Jury. — The  jury  spoken  of 
in  the  Constitution  is  the  common-law  jury,  and  consists  of  twelve  men.  Wynehamer 
v.  People,  13  N.  Y.  378  ;  Cruger  v.  Hudson  R.  R.  R.  12  K  Y.  190;  State  v.  Everett, 

14  Minn.  439 ;  Work  v.  State,  2  Ohio,  N.  S.  296 ;  Vaughan  v.  Scacle,  30  Mo.  600 ; 
Bowles  v.  State,  5  Sneed,  360;  May  v.  Milwaukee  &c.  R.  R.  3  Wise.  219;  Norval  v. 
Rice,  2  Wise.  22.     See  further  as  to  number  of  jurors  under  the  head  "  Waiver," 
infra.     For  cases  upon  statutes  providing  for  juries  of  a  less  number  than  twelve,  and 
for  an  appeal  therefrom,  &c.,  see  supra,  under  the  heads  "Appeal"  and  "Minor 
Offences."     If  the  trial  before  a  jury  of  less  than  twelve  in  an  inferior  court  is  consti- 
tutional, it  seems  the  Legislature  may  refuse  a  retrial  of  the  merits  before  a  jury  on 
appeal.     Des  Moines  v.  Layman,  21  Iowa,  153.    As  to  the  constitutionality  of  a  stat- 
ute of  South  Carolina  reducing  the  number  of  jurors  to  eight,  see  State  v.  Starling, 

15  Rich.  (Law)  120. 

The  verdict  must  be  unanimous.     Opinions  of  Justices,  41  N.  H.  550. 

Although  the  common-law  jury  must  be  preserved  with  its  essential  incidents  and 
features,  the  constitutional  guaranty  does  not  forbid  changes  in  the  methods  of  impan- 
eling, &c.,  or  in  the  qualifications  if  impartiality  be  maintained,  nor  in  the  number  of 
challenges,  and  the  like.  For  cases  sustaining  the  validity  of  statutes  making  such 
changes,  see  Stokes  v.  People,  53  N.Y.  164  ;  Rafe  v.  State,  20  Geo.  60 ;  State  v.  Clayton, 
11  Rich.(Law)  581.  In  Ohio  a  statute  admitting  jurors  who  had  formed  and  expressed 
an  opinion,  provided  the  court  was  satisfied  that  they  would  render  an  impartial  ver- 
dict, was  sustained,  although  the  Constitution  required  an  "impartial "  jury.  Cooper 
v.  State,  16  Ohio,  N.  S.  328.  In  Pennsylvania  it  has  been  held  that  a  juror  may  be  a 
witness,  although  the  Constitution  requires  an  "  impartial "  jury.  Howser  v.  Common- 
wealth, 51  Penn.  St.  332.  Giving  additional  right  of  peremptory  challenge  to  the  State 
does  not  violate  the  constitutional  guaranty.  Warren  v.  Commonwealth,  37  Penn  St. 
45 ;  Hartzell  v.  Commonwealth,  40  Penn.  St.  462  ;  Walter  v.  People,  32  K  Y.  147. 

Jury  of  the  County,  District,  or  Vicinage. — In  most  of  the  Constitutions  it  is  pro- 
vided that  in  criminal  cases  the  accused  shall  have  the  right  to  a  trial  by  a  jury  u  of 
the  county  or  district  in  which  the  crime  was  committed,"  or  "  of  the  vicinage." 
The  decisions  upon  this  particular  provision  are  directly  conflicting.  According  to 
some  it  does  not  prevent  a  change  of  venue  at  the  instance  of  the  prosecution.  State 
v.  Miller,  15  Minn.  344 ;  but  on  the  contrary,  other  cases  hold  that  the  venue  cannot 
be  changed  except  by  the  assent  of  the  accused,  and  that  statutes  authorizing  the 
court  to  order  the  change  upon  request  of  the  prosecution,  and  for  good  cause  shown, 
are  void.  Osborn  v.  State,  24  Ark.  629 ;  Wheeler  v.  State,  24  Wise.  52 ;  State  v. 
Denton,  6  Cold.  (Tenn.)  539;  Kirk  v.  State,  1  Cold.  344.  In  Tennessee  a  statute  al- 
lowing "  offences  committed  on  the  boundary  line  of  two  or  more  counties  or  within 
a  quarter  of  a  mile  thereof"  to  be  tried  in  either  county,  was  held  void.  The  court 
said  that  there  were  no  "  districts  "  to  which  the  langusge  of  the  Constitution  could 
apply,  and  that  the  trial  must  be  in  the  county  Avhere  the  offence  is  committed. 
Armstrong  v.  State,  1  Cold.  338.  But  in  Minnesota  a  similar  statute  was  pronounced 
valid,  on  the  ground  that  it  did  not  violate  the  intent  of  the  Constitution.  State  v. 
Robinson,  14  Minn.  447. 

Miscellaneous  Incidents. — A  statute  requiring  an  affidavit  of  merits  on  pain  of 
default,  is  valid.  Hunt  v.  Lucas,  99  Mass.  404;  and  one  providing  that  plaintiff 


494  TRIAL  BY  JURY. 

the  method  must  be  determined  in  accordance  with  the  clause 
in  the  Constitution."  * 

*  Armstrong  v.  Jackson,  1  Blackf.  375. 

need  not  prove  certain  facts,  unless  they  are  denied  on  oath  in  the  answer.  Thigpen 
v.  Miss.  C.  R.  R.  32  Miss.  347;  and  one  allowing  a  nonsuit  on  failure  to  make  out 
a  prima  facie  case.  Naugatuck  &c.  R.  R.  v.  Waterbury  Button  Co.  24  Conn.  468. 
Nonsuit  may  be  ordered  -without  any  permissive  statute.  Munn  v.  Pittsburg,  40 
Penn.  St.  364.  A  statute  providing  for  judgment  on  failure  to  plead  after  overruling 
a  demurrer,  is  valid.  People  v.  King,  28  Cal.  265.  And  one  giving  court  power  to 
assess  damages  without  a  jury  on  a  default.  Hopkins  v.  Ladd,  35  111.  178.  Upon 
default  in  pleading  in  an  information  to  try  title  to  an  office,  the  defendant  cannot 
demand  a  jury  until  he  tenders  an  issue.  State  v.  Gleason,  12  Fla  190,  266.' 

The  right  to  a  jury  trial,  although  not  absolutely  denied,  may  be  so  hampered  as 
to  violate  the  constitutional  guaranty,  e.  g.,  by  onerous  provisions  as  to  bail  on  appeal. 
People  v.  Carrol,  3  Park.  Cr.  22.  But  the  requirement  of  a  reasonable  jury  fee  from 
one  demanding  a  jury  trial,  is  not  such  an  onerous  condition,  and  is  proper.  Adams 
v.  Corriston,  7  Minn.  456. 

Where  a  compulsory  reference  was  allowed  in  certain  jury  cases  before  the  adop- 
tion of  the  Constitution,  a  statute  providing  for  such  references  is  valid.  Mead  v. 
"Walker,  17  Wise.  189;  Dane  County  v.  Dunning,  20  Wise.  210;  but  in  Vermont  a 
statute  was  held  unconstitutional  which  provided  for  a  compulsory  reference  of  cases, 
and  that  the  report  of  the  referee  should  be  prima  facie  evidence  if  either  party 
claimed  a  jury  trial.  Plimpton  v.  Somerset,  33  Vt.  283.  The  same  was  held  in 
Pennsylvania  of  a  compulsory  reference  when  the  award  was  to  be  final.  Rhines  v. 
Clark,  51  Penn.  St.  96.  See  also  People  v.  Haws,  37  Barb.  440;  Baldwin  v.  New 
York,  45  Barb.  359. 

The  Legislature  cannot  dispense  with  allegations  of  material  facts  in  indictments, 
e.  g.,  that  no  license  has  been  granted,  in  prosecutions  for  selling  without  a  license, 
such  sale  being  prohibited.  Hewett  v.  State,  25  Tex.  722;  State  v.  Wilburn,  11.  738. 
It  seems  that  the  making  an  act  innocent  in  itself— e.  gr.,  the  delivery  of  liquors 
in  or  from  any  place  other  than  a  dwelling-house— pn'wa  facie  evidence  of  unlawful 
sale  is  not  a  violation  of  the  right  of  trial  by  jury.  Commonwealth  v.  Williams,  6 
Gray,  1 ;  Commonwealth  v.  Rowe,  14  Gray,  47 ;  State  v.  Hurley,  54  Me.  562 ;  and  see 
State  v.  Cunningham,  25  Conn.  195. 

Waiver  of  the  Eight. — In  civil  cases  the  right  may  be  waived;  therefore  when  a 
party  has  the  option  of  a  jury  trial  there  is  no  violation  of  the  right.  Dailey  v.  State, 
4  Ohio,  N.  S.  57 ;  Dillingham  v.  State,  5  Ohio,  N.  S.  280.  Where  the  Constitution 
provided  that  a  jury  trial  might  be  waived  in  all  civil  cases  "in  the  manner  to  be 
prescribed  by  law,"  it  was  held  that  the  power  of  prescribing  what  should  be  a 
waiver  could  not  be  delegated  to  the  courts.  Exline  v.  Smith,  5  Cal.  112.  It  is 
settled  that  in  the  trial  of  capital  and  other  felonies  the  accused  cannot  waive  his 
right  to  a  trial  by  the  common-law  jury,  and  if  he  consent  personally  or  by  counsel 
to  be  tried  by  a  jury  of  less  than  twelve,  the  trial  and  conviction  are  nullities.  Can- 
cenii  v.  People,  18  K  Y.  128 ;  Wilson  v.  State,  6  Ark.  601 ;  State  v.  Mansfield,  41 
Mo.  470.  This  was  an  indictment  for  burglary,  the  prisoner  consenting  on  the  trial 
to  go  on  with  eleven  jurors.  Held,  that  in  capital  crimes  and  felonies  the  accused 
cannot  waive  a  regular  jury;  but  that  in  misdemeanors  he  may  thus  waive,  and  even 
submit  to  be  tried  by  the  court.  In  Hill  v.  People,  16  Mich.  351,  which  was  an  in- 


TRIAL  BY  JURY.  495 

In  Ohio,  it  lias  been  held  that  this  constitutional  limitation 
places  the  essential  and  peculiar  features  of  the  institution,  as 
known  to  the  common  law,  beyond  the  reach  of  legislative  con- 
trol; and,  consequently,  an  act  directing  certain  cases  to  be 
tried  by  a  jury  of  six  men  was  decided  to  be  unconstitutional 
and  void,  the  court  saying  that  both  the  number  and  the  una- 
nimity of  the  jury  were  inherent  attributes  secured  by  the 
constitutional  provision.*  The  same  general  principle  has 
been  declared  in  Kentucky  and  in  many  other  of  the  States,  f 

Indeed,  the  constitutional  provision  has  been  in  some  of  the 
States  very  largely  construed ;  and  it  has  been  held  that  any 
improper  interference  with  the  functions  of  the  jury  comes 
within  the  spirit  of  the  clause.  So,  as  to  the  power  to  dis- 
charge a  jury,  it  has  been  held  in  Alabama,  that  within  the 
meaning  of  the  constitutional  provision,  a  court  has  no  power 
arbitrarily  to  interfere  and  arrest  a  jury  trial;  and  that  this 
can  only  be  done  in  cases  of  pressing  and  legal  necessity.  An 
unauthorized  discharge,  whether  in  the  case  of  a  murder  or  a 
felony,  is  equivalent  to  an  acquittal.  £ 

*  Work  jv.  The  State    of  Ohio,  2  Ohio  f  Enderman  v.  Ashby,  Pr.  Dec.  65 ;  Stid- 

State  R.  296.'  It  was,  however,  admitted  that  ger  v.  Rodgers,  Pr.  Dec.  64;  Carson  v.  Com- 

in  regard  to  proceedings  in  which  a  jury  was  monwealth,  1  A.  K.  Marsh,  290;  Hughes  v. 

not  required  at  common  law,  the  Legislature  Hughes,  4  Monroe,  43. 

nrisjht  in  its  discretion  authorize  a  jury  of  any  J  Ned  v.  The  State,  7  Porter,  187;  Cobia 

number.  v.  The  State,  16  Ala.  781 ;    M'Cauley  v.  The 

dictment  for  murder,  one  of  the  jurors  was  an  alien,  which  fact  was  not  known  to 
the  prisoner  or  his  counsel  until  after  the  verdict  of  guilty  ;  held,  that  under  the  Con- 
stitution and  statute  the  jurors  must  be  citizens,  that  the  case  must  be  treated  as 
though  the  trial  had  been  by  eleven  jurors,  and  that  the  accused  cannot  waive  his 
right  to  a  full  jury.  The  reasoning  of  the  court  applied  alike  to  trials  for  felonies 
and  for  misdemeanors,  no  distinction  being  suggested  between  them.  There  is  some 
conflict  in  the  cases  in  respect  to  the  power  of  the  accused  to  waive  his  right  011  a 
trial  for  a  misdemeanor.  In  Commonwealth  v.  Dailey,  12  Gush.  80,  which  was  an 
indictment  for  an  assault  upon  an  officer,  the  trial  was  with  eleven  jurors  by  consent 
of  defendant's  counsel  in  open  court;  defendant  was  present,  but  was  not  consulted, 
and  said  nothing.  Held,  a  valid  trial,  and  the  rule  was  stated  that  in  misdemeanors 
the  accused  may  waive,  though  not  in  felonies.  To  the  same  effect  are  Murphy  v. 
Commonwealth,  1  Mete.  (Ky.)  365 ;  Tyra  v.  Commonwealth,  2  Mete.  (Ky.)  1 ;  State 
v.  Cox,  3  Eng.  (Ark.)  436.  But  in  Brown  v.  State,  16  Ind.  496,  a  prosecution  for 
malicious  mischief,  the  defendant's  counsel  waived  a  full  jury  in  open  court,  the 
defendant  being  present,  but  not  being  consulted,  and  not  speaking.  Held,  that 
the  defendant  was  not  bound,  and  that  the  trial  was  a  nullity.  See  also  Brown  v. 
State,  8  Blackf.  561 ;  and  Bond  v.  State,  17  Ark.  290,  where  it  was  held  that  on  an 
indictment  for  assault  and  battery  the  accused  cannot  waive  a  common-law  jury. 


496  TRIAL  BY   JURY. 

But,  on  the  other  hand  the  guaranty  is  to  be  reasonably 
interpreted.  It  was  not  intended  by  this  provision  to  tie  up 
the  hands  of  the  Legislature,  so  that  no  regulations  of  the  trial 
by  jury  could  be  made ;  and  it  has  been  decided  that  the  pro- 
vision is  not  violated,  so  long  as  the  trial  by  jury  is  not  sub- 
stantially impaired,  although  it  be  made  subject  to  new  modes 
and  even  rendered  more  expensive.* 

It  is  also  to  be  understood  that  when  the  Constitution  guar- 
antees the  right  of  trial  by  jury,  it  does  not  mean  to  secure  that 
right  in  all  possible  instances,  but  only  in  those  cases  in  which 
it  existed  when  our  Constitutions  were  framed.  It  is  well  set- 
tled that  the  constitutional  guaranty  of  a  trial  by  jury,  in  the 
usual  terms  that  "  the  trial  by  jury  shall  remain  inviolate,"  does 
not  apply  except  to  offences  which  at  the  time  of  the  adoption 
of  the  Constitution  were  such,  either  by  statute  or  common  law  ; 
and  that  it  is  competent  for  the  Legislature  to  make  offences 
created  by  statute  since  that  period  triable  by  summary  pro- 
ceedings without  a  jury.f 

So,  on  the  same  principle,  it  has  been  settled  in  Virginia 
that  where,  by  statute  passed  previous  to  the  adoption  of  the 
Constitution,  the  Court  of  Chancery  had  jurisdiction  to  try  a 
matter  without  the  intervention  of  a  jury,  that  right  was  not 
taken  away  by  the  adoption  of  the  Constitution.  J  And  in 
Kentucky  it  has  been  decided  that  the  constitutional  clause 
does  not  enlarge  the  right  of  trial  by  jury,  so  as  to  extend  it  to 
cases  where,  previous  to  the  Constitution,  that  mode  of  trial  did 
not  belong  to  the  party  as  a  matter  of  right.  |  So,  too,  in  the 
State  of  Pennsylvania,  it  has  been  held  that  an  act  prohibiting 
the  sale  of  intoxicating  liquors  on  Sunday,  and  authorizing  a 
conviction  for  the  violation  of  the  statute,  is  not  unconstitu- 

State,  26  Ala.  135.     The  rule  seems  substan-  the  rule  does  not  at  all  apply.     Ex.  parts  Ed- 
tially  the  same  in  the   other  States.     See  as  ward  Henry,  24  Ala.  638. 
to  the  power  of  discharging  a  jury,  or  enter-  *  Beers  v.  Beers,  4  Conn.  R.  539;  Colt  y. 
ing  a  tiolle  prosequi  in  criminal  cases,  Com-  Eves,  12  Conn.  243,  253. 
monwealth  T.  Tuck,  20  Pick.  356;    Mount  v.  f  Boring  v.  Williams,  17  Ala.  510;  Timi 
The  State,  14  Ohio,  295  ;  Mahala  v.  The  State,  v.  The  Stsite,  26  Ala.  165. 
10  Yerg.  532  ;  The  People  v.  Denton,  2  Johns.  1  Watts  v.  Griffin,  6  Litt.  247. 
Cases,  275.     The  People  T.  Olcott,  2  J.  C.  301 ;  f  Harris  v.Wood,  6  Munroe,  642  ;  Creigh- 
The  People  v.  Barrett,  2  Caines,  305.     In  civil  ton  v.  Johnson,  6  Litt.  241 ;  Ewing  T.  Direct- 
cases,  the  courts  possess  an  unlimited  power  ors   of  the  Penitentiary,  Hardin  K.  5 ;   Har- 
to  order  new  trials ;  and  to  these,  therefore,  rison  v.  Chiles,  3  Litt.  R.  200.     See  in  Penn- 
sylvania, Emerick  v.  Harris,  1  Binney,  416. 


TRIAL  BY  JURY.  497 

tional  by  reason  of  not  providing  for  a  trial  by  jury.  The 
Legislature  may  declare  a  new  offence,  and  prescribe  the  mode 
of  trial*  Indeed,  extensive  and  summary  police  powers  are 
constantly  exercised  in  all  the  States  of  the  Union  for  the  re- 
pression of  breaches  of  the  peace  and  petty  offences ;  and  these 
statutes  are  not  supposed  to  conflict  with  the  constitutional 
provisions  securing  to  the  citizen  a  trial  by  jury ;  and  so  it  has 
been  held,  in  Vermont,  in  regard  to  drunkenness  and  the  sale 

/  /  o 

of  intoxicating  liquors,  f  Statutes  giving  summary  remedies 
against  public  officers  and  their  sureties  have,  in  Kentucky, 
been  held  not  to  be  within  the  constitutional  limitation ;  §  but 
in  Indiana,  a  contrary  opinion  has  been  expressed.  || 

Where  a  law  creates  or  extends  a  summary  jurisdiction  for 
the  trial  of  causes  without  a  jury,  it  does  not  violate  the  con- 
stitutional provision  securing  that  right,  provided  on  an  appeal 
the  party  is  entitled  to  a  jury  as  of  right, — upon  the  ground 
that  the  defendant,  if  he  thinks  proper,  can  have  his  case  de- 
cided by  a  jury  before  it  is  finally  settled. *[[ 

In  Connecticut,  the  Bill  of   Bights  declares   "  that  in  all 

'  O 

criminal  prosecutions  the  accused  shall  have  a  right  to  be  heard 
by  himself  and  by  counsel,  to  demand  the  nature  and  cause  of 
the  accusation,  to  be  confronted  by  the  witnesses  against  him, 
and  to  have  compulsory  process  to  obtain  witnesses  in  his 
favor."  But  this  has  been  held'  not  to  apply  to  the  proceedings 
of  a  grand  jury  in  finding  an  indictment.** 

As  to  the  question  of  interest  in  a  juror,  in  Massachusetts, 
it  has  been  held  to  be  no  sufficient  exception  to  an  indictment 
for  an  offence  to  which  the  law  annexes  a  fine  for  the  use  of 
the  town  where  the  offence  is  committed,  that  the  foreman  of 
the  grand  jury  who  found  the  indictment  is  a  taxable  inhabitant 
of  the  town.ff 

*  Van  Swartow  v.  The  Commonwealth,  24  v.  Beers,  4  Conn.  535  ;  Emerick  v.  Harris,  1 

Penn.  131.  Binney,  416  ;    M'Donald  v.  Schell,  6  Serg.  <fc 

\  In  re  Powers,  25  Vermont  R.  261 ;  Mur-  Rawle,  240;   Ste  \vart  v.  Mayor,  <fcc.  7  Mary- 

phy  v.  The  People,  2  Cowen,  815  ;  Jackson  ex  land,  501.     As  to  trial  by  jury,  generally,  see 

dem.  Wood  v.  Wood,  2  Cowen,  819.     See  in  Mr.  J.  Strong's  opinion  in  People  v.  Berberrick 

Massachusetts,  Mountfort  v.  Hall,  1  Mass.  443 ;  <fe  Toynbee,  11  Howard  P.  R.  333,  and  Wyne- 

Inhabs.  of  Shirley  v.  Lunenburgh,  11  Mass.  379.  hamer  v.  The  People,  3  Kernan,  378;   The 

\  Murry    v.  Askew,  6  J.  J.  Marsh.   27  ;  People  v.  Duffy,  6  Hill,  75. 

"Wells  v.  Caldwell,  1  A.  K.  Marsh.  441.  **  The  State  v.  Wolcott,  21  Conn.  272. 

I  Dawson  v.  Shaver,  1  Blackf.  204.  f  f  Commonwealth  v.  Thos.  Ryan,  5  Mass. 

1C  Morford  v.  Barnes,  8  Yerger,  444  ;  Beers  R.  90. 

32 


498  SEARCHES   AND  SEIZURES. 

In  connection  with  this  subject,  it  is  proper  to  call  attention 
to  the  provision  to  be  found  in  some  of  our  more  recent  Con- 
stitutions, forbidding  the- court  to  instruct  juries  in  regard  to 
the  facts  of  a  cause.  So,  the  Constitution  of  California  declares 
that  "judges  shall  not  charge  juries  with  respect  to  matter  of 
fact,  but  may  state  the  testimony  and  declare  the  law."*  I 
cannot  but  regard  this  as  a  very  unfortunate  innovation.  The 
jury  loses  no  small  portion  of  its  value  when  deprived  of  the 
aid  of  an  upright  and  intelligent  judge,  accustomed  to  scru- 
tinize, to  compare,  to  analyze  and  to  weigh  testimony.  Indeed, 
so  long  as  the  right  to  state  the  testimony  is  left,  the  prohibi- 
tion becomes  almost  nugatory ;  it  would  be  difficult,  if  not  im- 
possible, for  the  most  skillful  magistrate  so  to  sum  up  the 
evidence  as  to  avoid  communicating  to  the  jury  his  view  of 
the  verdict  which  should  be  rendered.  The  provision,  I  think, 
comes  from  a  jealousy  of  the  bench,  for  which  no  adequate 
reason  can  be  alleged.f 

Searches  and  Seizures. — The  provisions  in  regard  to  search- 
warrants,  to  be  found  in  both  the  State  and  Federal  Constitu- 
tions, were  no  doubt  suggested  by  the  abuses  which  experience 
had  shown  to  result  in  England,  from  the  practice  of  granting 
general  warrants  issued  on  suspicion,  and  without  any  specifica- 
tion whatever,  to  search  any  house,  to  break  open  any  recep- 
tacle, seize,  and  cany  away  all  or  any  property.  These  gen- 
eral warrants  wrere  declared  illegal  in  the  last  century;  and 
Lord  Camden's  reputation  derives  no  small  portion  of  its  luster 
from  the  vigor  with  which  he  on  that  occasion  defended  some 
of  the  fundamental  principles  of  liberty.^  I  give  below  the 
provisions  of  several  of  the  State  Constitutions  on  this  import- 
ant subject : 

*  Cons  art.  6,  §  17.  dered.    Bond  v.  Bond,  2  Pick  382.     A  strong 

f  Tne  Constitution  of  Tennessee,  art.  vi,  opinion  has  been  expressed  in  that  State,  that  a 

§  9,  contains  the  same  provision  in  the  same  pecuniary  penalty  cannot  be  constitutionally 

words.  imposed  by  a  court  martial  without  a  jury. 

In  Massachusetts,  it  has  been  held  that  a  Brooks  v.  Daniel,  22  Pick.  498.     Morton,  J., 

statutory    provision    authorizing    additional  said,   "  It  assuredly  is  a  novelty   to  find  a 

punishment  to  be  inflicted  on  a  convict  upon  court  martial  dealing  with  mulcts  and  forfeit- 

an  information,  is  not  unconstitutional.    Ross's  ares,  or  a  common-law  court  sustaining  an  ac- 

Gase,  2  Pick.  165.     The  statute  permitting  a  tion  upon   the  sentence  of  a  court  martial." 

judge  of  probate  to  appoint  a  guardian  to  a  But  the  case  was  decided  on  another  ground, 
spendthrift   is  not    unconstitutional,   on   the  \  Enti  k  v.  Carrington,  19  Howell's  State 

ground  that  the  spendthrift  might  appeal  to  the  Trials,  No.  1029;  Commonwealth  v.  Dana,  2 

Supreme  Court,  where  a  trial  by  jury  can  be  or-  Met.  335. 


SEARCHES  AND  SEIZURES.  499 

Maine. — "  The  people  shall  be  secure  in  their  persons,  houses,  papers  and 
possessions,  from  unreasonable  searches  and  seizures  ;  ami  no  warrant  to  search 
any  place,  or  seize  any  person  or  thing,  shall  issue  without  a  special  designation 
of  the  place  to  be  searched,  and  the  person  or  thing  to  be  seized,  nor  without 
probable  cause  supported  by  oath  or  affirmation."  * 

Vermont. — "  That  the  people  have  a  right  to  hold  themselves,  their  houses, 
papers,  and  possessions,  free  from  search  or  seizure  ;  and  therefore,  warrants 
without  oath  or  affirmation  first  made  affording  sufficient  foundation  for  them, 
and  whereby  an  officer  or  messenger  may  be  commanded  or  required  to  search 
such  suspected  places,  or  to  seize  any  person  or  persons,  his,  her,  or  their  prop- 
erty, not  particularly  described,  are  contrary  to  that  right,  and  ought  not  to  be 
granted." f 

Massachusetts. — "  Every  person  has  a  right  to  be  secure  from  all  unreason- 
able searches  and  seizures  of  his  person,  his  house,  his  papers,  and  all  his  pos- 
sessions. All  warrants,  therefore,  are  contrary  to  this  right,  if  the  cause  or 
foundation  of  them  be  not  previously  supported  by  oath  or  affirmation,  and  if 
the  order  in  a  warrant  to  a  civil  officer  to  make  search  in  all  suspected  places, 
or  to  arrest  one  or  more  suspected  persons,  or  to  seize  their  property,  be  not 
accompanied  with  a  special  designation  of  the  persons  or  objects  of  search, 
arrest,  or  seizure  ;  and  no  warrant  ought  to  be  issued  but  in  such  cases,  and 
with  the  formalities  prescribed  by  the  laws."  J 

Rhode  Island. — "  The  right  of  the  people  to  be  secure  in  their  persons, 
papers,  and  possessions,  against  unreasonable  searches  and  seizures  shall  not  be 
violated  ;  and  no  warrant  shall  issue  but  on  complaint  in  writing,  upon  probable 
cause,  supported  by  oath  or  affirmation,  and  describing,  as  nearly  as  may  be, 
the  place  to  be  searched  and  the  person  or  things  to  be  seized."  || 

Connecticut. — "The  people  shall  be  secure  in  their  persons,  houses,  papers, 
and  possessions,  from  unreasonable  searches  or  seizures ;  and  no  warrant  to 
search  any  place,  or  to  seize  any  person  or  things,  shall  issue  without  describing 
them  as  nearly  as  may  be,  nor  without  probable  cause  supported  by  oath  or 
affirmation."  ^[ 

New  Jersey. — "  The  right  of  the  people  to  be  secure  in  their  persons,  houses, 
papers,  and  effects,  against  unreasonable  searches  and  seizures,  shall  not  be  vio- 
lated ;  and  no  warrant  shall  issue  but  upon  probable  cause,  supported  by  oath 
or  affirmation,  and  particularly  describing  the  place  to  be  searched,  and  the 
papers  and  things  to  be  seized."  ** 

Pennsylvania. — "  8.  That  the  people  shall  be  secure  in  their  persons,  houses, 
papers,  and  possessions,  from  unreasonable  searches  and  seizures  ;  and  that  no 
warrant  to  search  any  place,  or  to  seize  any  person  or  things,  shall  issue  with- 
out describing  them  as  nearly  as  may  be,  nor  without  probable  cause,  sup- 
ported by  oath  or  affirmation."  ff 

Delaware. — "  The  people  shall  be  secure  in x their  persons,  houses,  papers, 

*  Constitution  of  Maine,  art.  i,  §  5.  |  Constitution  of  Rhode  Island,  art.  i,  §  6. 

f  Constitution  of  Vermont,  ch.  i,  §  11.  "ft  Constitution  of  Connecticut,  art.  i,  §  8. 

\  Constitution  of  Massachusetts,   part  i,         **  Constitution  of  New  Jersey,  art.  i,  §  6. 

,§  14.  ft  Constitution  of  Pennsylvania.art.  ix;  §  8. 


500  SEARCHES  AND  SEIZURES. 

and  possessions,  from  unreasonable  searches  and  seizures ;  and  no  warrant  to 
search  any  place,  or  to  seize  any  person  or  things,  shall  issue  without  describing 
them  as  particularly  as  may  be,  nor  then,  unless  there  be  probable  cause,  sup- 
ported by  oath  or  affirmation."  * 

Maryland. — "  That  all  warrants,  without  oath  or  affirmation,  to  search  sus- 
pected places,  or  to  seize  any  person  or  property,  are  grievous  and  oppressive  ; 
and  all  general  warrants  to  search  suspected  places  or  to  apprehend  suspected 
persons,  without  naming  or  describing  the  place  or  the  person  in  special,  are 
illegal,  and  ought  not  to  be  granted."  f 

The  provisions  above  cited  are  of  great  importance  as  guar- 
anties of  private  right  against  lawless  invasion ;  but  very  few 
cases  have  arisen  in  regard  to  them.  I  notice  some  of  the  most 

prominent. 

"Where  a  search-warrant  recites  an  information  on  oath,  that 
certain  described  goods  have  been  stolen  by  A  and  B,  and  are 
in  the  house  of  C,  it  is  not  necessary  that  the  warrant  should 
state  the  name  of  the  owner  of  the  goods.  {  But  the  warrant 
must  describe  the  persons  whose  houses  are  to  be  entered 
and  the  goods  which  are  the  object  of  search.  [  If  a  search- 
warrant  for  lottery  tickets,  and  a  complaint  correctly  describing 
the  things  to  be  seized,  be  on  the  same  paper,  and  the  warrant 
direct  the  officers  to  search  for  the  things  mentioned  in  the 
complaint,  the  warrant  is  legal  and  sufficient,  though  the  war- 
rant itself  contain  no  further  description.^"  (a) 

*  Constitution  of  Delaware,  art.  i,  §  6.  «  Sandford  v.  Nichols    13  Mass.  288  de- 

t  of  Maryland,  art.  i,  §  23.         cided  with  reference  to  the  provision  of  the 
{  Sell  v   Clapp   10 JR.  263  •  see  llso,  as     Constitution  of  the  United  States  on  this  point, 


to  swTnnework,  Beaty  v.Pe,     ,* 
kins,  6  Wend.  oo^. 


>  Searches  and  Seizures.-ln  the  following  cases,  statutes  authorizing  searches 

and  seizures  were  held  valid.     Gray  v.  Kimball,  42  Me.  299  ;    State  v.  Brennan's 

nnuor,  25  Conn.  278;  Allen  v.  Staples,  6  Gray,  491  ;  Stanwood  v.  Green,  2  Abb.  L. 

S.  R.  184.    For  a  case  where  the  warrant  was  held  void  for  vagueness,  see  Ashley  v. 

Patterson,  25  Wise.  621. 

Where  the  constitutional  prohibition  (Art.  6,  §  26),  is  against  warrants  not  base. 
upon  probable  cause  supported  by  oath  or  affirmation,  the  facts  themselves  mus 

pear  upon  knowledge.  Brown  v.  Kelly,  20  Mich.  27,  34.  An  act  allowing  search- 
Trrants  in  aid  of  civil  proceedings,  and  merely  for  the  discovery  of  goods-  without 
provisions  for  trial  of  the  right  thereto,  is  void.  Robinson  v.  Richardson  18  Gray, 
'  Js4  The  prohibition  of  the  Constitution,  does  not  extend  to  a  proper  and  reasona- 
ble ieaich  or  seizure,  by  persons  attempting  to  execute  a  military  order  authomed 
by  the  Constitution,  and  an  act  of  Congress,  e.  g.  an  order  for  the  arrest  of  per- 
sons secreting  themselves  to  avoid  a  draft.  Allen  v.  Colby,  47  K  H.  544. 


TAXATION.  501 

The  clauses  which  we  have  thus  considered,  together  with 
that  in  regard  to  the  obligation  of  contracts,  which  we  shall 
examine  in  the  next  chapter,  are  by  far  the  most  important  pro- 
visions that  our  State  Constitutions  contain  for  the  protection 
of  the  property,  liberty,  and  life  of  the  citizen.  They  are, 
indeed,  the  principal  safeguards  that  our  system  contains. 
Many  other  minor  checks  upon  legislation  have,  however,  been 
suggested  by  the  gradual  acquisition  of  experience;  and  to 
some  of  the  more  important  of  these  I  now  turn  the  attention 
of  the  reader. 

Taxation. — Under  the  head  of  the  clause  in  regard  to  pri- 
vate property  we  have  had  occasion  to  notice,*  that  the  restrain- 
ing effect  of  that  limitation  has  never  been  applied  to  taxation ; 
and  that,  as  a  general  rule,  the  taxing  power  has  been  treated 
by  the  judiciary  as  vested  in  the  absolute  discretion  of  the  leg- 
islative bodies. 

This  doctrine  has  been  repeatedly  declared,  both  by  the 
State  and  Federal  tribunals.  So  it  has  been  said  in  New 
Hampshire,  that  the  power  of  taxation  is  essentially  a  power  of 
sovereignty  or  eminent  domain,  f  So  the  Supreme  Court  of 
the  United  States  have  said,  that  there  is  no  limitation  what- 
ever upon  the  legislative  power  of  the  States,  as  to  the  amount 
or  objects  of  taxation.  In  truth,  the  wisdom  and  justice  of  the 
representative  body,  and  its  dependence  on  its  constituents,  fur- 
nish the  only  security  against  unjust  and  excessive  taxation,  ex- 
cept only  in  those  States  where  express  provisions  have  been 
inserted  in  their  Constitutions,  intended  to  secure  equality  and 
uniformity  in  the  exercise  of  the  power.  In  these  cases,  of 
course,  the  construction  and  application  of  the  constitutional 
check  bring  the  matter,  to  a  certain  extent,  within  the  control 
of  the  courts.^  So,  in  the  State  of  Vermont,  the  Supreme  Court 
has  said,  "  If  the  Legislature  have  the  right  of  taxation  over 
any  given  property  or  possession,  that  power  is  admitted  to 
be  unlimited  and  uncontrollable,  except  by  their  own  discre- 
tion." 1 

*  Ante,  p.  424.  Jones,  1  Foster,  393  ;  Blackwell  on  Tax  Titles 

f  Brewster  v.  Hough,  10  N.  H.  R,  143.  p.  9. 

\  Providence  Bank  v.   Billings,  4  Peters,  |  Herrick  v.   Randolph,  13   Verm.  529. 

514;  Brewster  v.  Hough,  10  N.  H.  138;  Mackv.  Taxes  are  neither  judgments  nor  contracts,  and 


502  TAXATION. 

In  several  of  the  States,  however,  owing  perhaps  to  the  r&- 
suits  of  experience  in  regard  to  the  abuse  of  the  legislative 
power,  various  precise  and  specific  constitutional  restrictions 
have  been  laid  upon  the  taxing  power.  The  insertion  of  these 
clauses  of  course  brings  the  subject  of  taxation  within  the  ulti- 
mate control  of  the  judiciary ;  and  the  matter  is  so  important 
that  I  annex  some  of  the  provisions  on  the  subject,  to  be  found 
in  the  more  recent  Constitutions. 

Michigan. — "  The  Legislature  shall  provide  an  uniform  rule  of  taxation,  ex- 
cept on  property  paying  specific  taxes,  and  taxes  shall  be  levied  on  such  prop- 
erty as  shall  be  prescribed  by  law."  * 

Illinois. — "  The  General  Assembly  shall  provide  for  levying  a  tax  by  valu- 
ation, so  that  any  person  and  corporation  shall  pay  a  tax  in  proportion  to  the 
value  of  his  or  her  property  ;  such  value  to  be  ascertained  by  some  person  or 
persons  to  be  elected  or  appointed  in  such  manner  as  the  General  Assembly 
shall  direct,  and  not  otherwise  ;  but  the  General  Assembly  shall  have  power  to 
tax  peddlers,  auctioneers,  brokers,  hawkers,  merchants,  commission  merchants, 
showmen,  jugglers,  inn-keepers,  grocery-keepers,  toll-bridges  and  ferries,  and 
persons  using  and  exercising  franchises  and  privileges,  in  such  manner  as  they 
shall  from  time  to  time  direct."  f 

Tennessee. — "  All  property  shall  be  taxed  according  to  its  value  ;  that  value 
to  be  ascertained  in  such  manner  as  the  Legislature  shall  direct,  so  that  the 
same  shall  be  equal  and  uniform  throughout  the  State.  No  one  species  of 
property  from  which  a  tax  may  be  collected  shall  be  taxed  higher  than  any 
other  species  of  property  of  equal  value  ;  but  the  Legislature  shall  have  power 
to  tax  merchants,  peddlers,  and  privileges,  in  such  manner  as  they  may  from 
time  to  time  direct.  A  tax  on  white  polls  shall  be  laid  in  such  manner  and  of 
such  an  amount  as  may  be  prescribed  by  law."  J 

Louisiana. — "  Taxation  shall  be  equal  and  uniform  throughout  the  State. 
All  property  on  which  taxes  may  be  levied  in  this  State  shall  be  taxed  in  pro- 
portion to  its  value,  to  be  ascertained  as  directed  by  law.  No  one  species  of 
property  shall  be  taxed  higher  than  another  species  of  property  of  equal 
value  on  which  taxes  shall  be  levied.  The  Legislature  shall  have  power  to 
levy  an  income  tax,  and  to  tax  all  persons  pursuing  any  occupation,  trade,  or 
profession."  | 

California. — "Taxation  shall  be  equal  and  uniform  throughout  the  State. 
All  property  in  this  State  shall  be  taxed  in  proportion  to  its  value,  to  be  ascer- 
tained as  directed  by  law."  ^f 

Wisconsin. — "  The  rule  of  taxation  shall  be  uniform,  and  taxes  shall  be 
levied  upon  such  property  as  the  Legislature  shall  prescribe."  ** 

are  not  the  subject  of  set-off  as  such.     Peirce  ±  Constitution  of  Tennessee,  art.  ii,  §  28. 

V.  City  of  Boston,  3  Met.  520.  f  Constitution  of  Louisiana,  tit.  vi,  §  123. 

*  Constitution  of  Michigan,  art.  xiv,  §  11.  T[  Constitution  of  California,  art.  xi,  §  13. 

f  Constitution  of  Illinois,  art.  ix,  §  2.  .     **  Constitution  of  Wisconsin,  art.  viii,  §  1.. 


TAXATION.  503 

Texas. — "  Taxation  shall  be  equal  and  uniform  throughout  the  State.  All 
property  in  this  State  shall  be  taxed  in  proportion  to  its  value,  to  be  ascertained 
as  directed  by  law,  except  such  property  as  two  thirds  -of  both  houses  of  the 
Legislature  may  think  proper  to  exempt  from  taxation.  The  Legislature  shall 
have  power  to  lay  an  income  tax,  and  to  tax  all  persons  pursuing  any  occupa- 
tion, trade,  or  profession,  provided  that  the  term  '  occupation '  shall  not  be 
construed  to  apply  to  pursuits  either  agricultural  or  mechanical."  * 

Arkansas. — "  All  property  subject  to  taxation  shall  be  taxed  according  to 
its  value ;  that  value  to  be  ascertained  in  such  manner  as  the  General  Assem- 
bly shall  direct,  making  the  same  equal  and  uniform  throughout  the  State.  No 
one  species  of  property  from  which  a  tax  may  be  collected  shall  be  taxed  higher 
than  another  species  of  property  of  equal  value;  provided,  the  General  Assem- 
bly shall  have  power  to  tax  merchants,  hawkers,  peddlers,  and  privileges,  in 
such  manner  as  may  from  time  to  time  be  prescribed  by  law  ;  and  provided 
further,  that  no  other  or  greater  amounts  of  revenue  shall  at  any  time  be  levied 
than  required  for  the  necessary  expenses  of  government,  unless  by  a  concur- 
rence of  two  thirds  of  both  houses  of  the  General  Assembly.  No  poll-tax  shall 
be  assessed  for  other  than  county  purposes.  No  other  or  greater  tax  shall  be 
levied  on  the  productions  or  labor  of  the  country,  than  may  be  required  for  ex- 
penses of  inspection."  f 

Missouri. — "  All  property  subject  to  taxation  in  this  State  shall  be  taxed 
in  proportion  to  its  value."  J 

Massachusetts. — "  And,  further,  full  power  and  authority  are  hereby  given 
and  granted  to  the  said  General  Court,  from  time  to  time,  to  impose  and  levy 
proportionable  and  reasonable  assessments,  rates,  and  taxes,  upon  all  the 
inhabitants  of,  and  persons  resident  and  estates  lying  within,  the  said  common- 
wealth ;  and  also  to  impose  and  levy  reasonable  duties  and  excises  upon  any 
produce,  goods,  wares,  merchandises,  and  commodities  whatsoever,  brought  into, 
produced,  manufactured,  or  being,  within  the  same."  ||  (a) 

*  Constitution  of  Texas,  art.  vii,  §  27.  \  Constitution  of  Missouri,  art.  xi,  §  19. 

f  Constitution  of  Arkansas,  art.  ix,  Reve-  ||  Cons,  of  Massachusetts,  §  1,  art.  iv. 

nue,  §  2. 

(a)  Uniformity  of  Taxation. — The  Constitutions  of  many  other  States  require 
that  taxation  shall  be  uniform  and  equal.  It  has  been  shown  that  these  provisions 
have  generally  been  held  applicable  to  taxation  for  general  purposes  only,  and  not 
to  local  assessments. 

Licenses. — They  have  also  been  generally  held  inapplicable  to  licenses,  especially 
when  evidently  imposed  for  police  purposes.  Thomasson  v.  State,  15  Ind.  449 ; 
Baker  v.  Cincinnati,  11  Ohio,  N.  S.  534;  New  Orleans  v.  Turpin,  13  La.  Ann.  56  ; 
so  of  fees  of  a  gauger.  Addison  v.  Saulnier,  19  Cal.  82.  The  California  Constitu- 
tion says :  "  Taxation  shall  be  equal  and  uniform,  and  all  property  shall  be  taxed  in 
proportion  to  its  value,"  and  "  All  laws  of  a  general  nature  shall  be  uniform  in 
their  operation."  These  provisions  do  not  make  it  necessary  to  tax  all  occupations 
or  none,  and  a  license  tax  on  the  business  of  auctioneers  was  held  valid.  People  v. 
Coleman,  4  Cal.  46 ;  but  see  People  v.  McCreery,  34  Cal.  432.  A  license  tax  graded 
on  amount  of  sales,  $10  on  monthly  sales  of  $1,000,  $12  50  on  monthly  sales  of 


504  TAXATION. 

In  construing  these  provisions  it  has  been  held,  in  many  of 
the  States,  that  the  words  "  equal  and  uniform"  apply  only  to 

$2,000,  &c.,  is  not  unconstitutional  as  being  unequal  in  its  operations.  Sacramento 
v.  Crocker,  16  Cal.  119.  Uniformity  must  be  such  as  is  compatible  with  the  subject- 
matter,  and  as  to  licenses  the  only  uniformity  required  is  that  the  tax  shall  be  the 
same  on  all  those  in  the  same  business,  and  the  carrying  on  of  the  business  of 
insurance  as  agent  for  a  foreign  insurance  company,  is,  it  seems  a  different 
business  from  that  of  agent  for  domestic  insurance  companies.  Slaughter  v. 
Commonwealth,  13  Gratt.  767 ;  see  also  Ducat  v.  Chicago,  48  111.  172.  The  same 
was  held  by  the  U.  S.  Supreme  Court  in  Ducat  v.  Chicago,  10  Wall.  410 ;  Liverpool 
Ins.  Co.  v.  Massachusetts,  10  Wall.  566;  Paul  v.  Virginia,  8  Wall.  168.  The 
requirement  that  foreign  insurance  companies  doing  business  within  the  State 
should  pay  a  percentage  of  their  premiums  to  the  fire  department,  was  sustained  in 
Wisconsin  as  an  exercise  of  the  police  power.  Fire  Department  v.  Helfenstein,  16 
Wise.  136.  A  tax  on  the  insurance  companies  of  a  particular  city  was  held  invalid, 
in  State  v.  Merchants'  Ins.  Co.  1 2  La.  Ann.  802  ;  but  it  would  seem  that  a  license  tax 
may  be  imposed  by  a  particular  city.  New  Orleans  v.  Turpin,  13  La.  Ann.  56.  A 
license  law  which  fixed  different  rates  for  different  localities,  but  did  not  discriminate 
as  to  persons,  was  held  valid  on  the  ground  that  a  license  is  not  a  tax  !  East  St. 
Louis  v.  Wehrung,  46  111.  392.  A  tax  on  all  persons  keeping  over  fifty  pounds  of 
powder  was  held  not  uniform,  and  therefore  void.  Police  Jury  v.  Cochran,  20  La. 
Ann.  373.  A  license  by  the  State  to  pursue  a  particular  calling  does  not  prevent  a 
municipality  from  also  imposing  a  license  tax  on  the  same,  the  power  to  lay  such 
taxes  being  given  to  such  municipality  by  statute,  New  Orleans  v.  Turpin,  13  La. 
Ann.  56.  License  to  pursue  a  particular  calling,  does  not  exempt  the  person  licensed 
from  a  tax  on  the  income  thence  derived.  Drexel  v.  Commonwealth,  46  Penn.  St. 
31. 

County  Taxation. — These  provisions  as  to  uniformity  have  been  held  not  to 
apply  to  taxation  for  county  purposes.  A  provision  of  the  Virginia  Constitution 
that  "  taxation  shall  be  equal  and  uniform  throughout  the  commonwealth,  and  all 
property  shall  be  taxed  in  proportion  to  its  value,"  was  held  not  to  apply  to  taxation 
for  county  purposes,  and  a  special  tax  on  the  office  of  sheriff  was  sustained.  Gilke- 
son  v.  Frederick  Justices,  13  Gratt.  577.  But  when  the  provision  of  the  Constitu- 
tion was  that  "  laws  shall  be  passed  taxing  by  a  uniform  rule  all  moneys,  &c.,  and 
also  all  real  and  personal  property  according  to  its  true  value  in  money,"  held 
to  apply  to  county  and  municipal  taxation  as  well  as  State.  Zanesville  v.  Muskin- 
gum  Co.  5  Ohio,  N.  S.  589 ;  but  not  to  local  assessments.  Hill  v.  Higdon,  Ib.  243. 

Exemptions  and  Commutations. — It  was  held  in  Illinois,  that  the  constitutional 
requirements  of  "  uniformity  "  do  not  take  away  the  power  of  exempting  from 
taxation  or  of  commuting  a  tax,  the  Constitution  also  providing  that  "  the 
General  Assembly  shall  have  power  to  tax  peddlers  *  *  *  toll  bridges  and  ferries 
and  persons  using  and  exercising  franchises  and  privileges,  in  such  manner  as  they 
shall  from  time  to  time  direct."  111.  Cent.  B.  R.  v.  County  of  McLean,  17  111.  291 ; 
Hunsaker  v.  Wright,  30  HI.  146 ;  Board  of  Supervisors  &c.  v.  Campbell,  42  111.  490  ; 
and  the  same  was  held  in  Michigan,  where  the  Constitution  contains  no  such  special 
provision,  the  State  receiving  an  equivalent  for  the  exemption.  People  v.  Auditor 
General,  7  Mich.  84.  See  also  Kneeland  v.  Milwaukee,  15  Wise.  454,  691 ;  Atty. 
Gen.  T.  Winnebago  &c.  PI.  R.  Co.  11  Wise.  35;  Milwaukee  &c.  R.  R.  v.  Super- 


TAXATION.  505 

a  direct  tax  on  property ;  and  that  the  clause  in  regard  to  uni- 
formity of  taxation  does  not  limit  the  power  of  the  Legislature 

visors,  9  Wise.  431.  But  a  municipality  cannot  exempt.  Weeks  v.  Milwaukee,  10 
Wise.  242.  But  in  California,  where  the  Constitution  provides  that  "  all  property 
in  this  State  shall  be  taxed  in  proportion  to  its  value  to  be  ascertained  as  directed 
by  law,"  and  "taxation  shall  be  equal  and  uniform  throughout  the  State,"  it  has 
been  held  that  exemption  of  private  property  is  prohibited,  and  that  the  rule  for 
State  purposes  must  be  uniform.  People  v.  McCreery,  34  Cal.  432. 

The  city  of  La  Salle  being  situate  in,  and  being  a  part  of  the  township  of  La 
Salle,  an  act  exempting  the  inhabitants  of  the  city  from  taxation,  in  support  of  the 
township  roads  outside  of  the  city  was  held  invalid.  O'Kane  v.  Treat,  25  111.  557. 
But  an  assessment  of  labor  for  repair  of  roads  is  not  a  tax.  Pleasant  v.  Kost,  29  111. 
490.  Under  a  provision  that  "  no  property  shall  be  exempt  from  taxation  except 
property  of  schools  of  the  United  States,  the  State,  counties  and  municipalities,  it  was 
held  that  the  Legislature  had  no  power  to  commute  taxes.  Life  Association  &c.  v. 
Board  of  Assessors,  49  Mo.  512. 

What  Violates  the  Requirement  of  Uniformity. — A  statute  providing  that  farming 
lands  outside  villages  should  only  be  taxed  at  one-half  the  rate  of  village  lots  does. 
Knowlton  v.  Supervisors,  9  Wise.  410 ;  and  an  act  taxing  the  real  estate  of  a  city  ex- 
clusively for  the  payment  of  the  municipal  debt.  Gilman  v.  Sheboygan,  2  Black,  510  ; 
and  in  Nevada,  the  Constitution  requiring  "  a  uniform  and  equal  rate  of  assessment 
and  taxation,"  an  act  taxing  three-fourths  of  the  value  of  the  products  of  mines  pre- 
scribes an  unequal  rate,  as  the  whole  should  be  taxed.  State  v.  Eastabrook,  3  Nev. 
173;  State  v.  Kruttschnitt,  4  Nev.  178.  Railroads  cannot  be  taxed  at  a  higher  rate 
than  individuals.  Bureau  County  v.  Chicago  &c.  R.  R.  44  111.  229 ;  Chicago  &c.  R. 
R.  v.  Boone  Co.  2J>.  240.  A  provision  in  a  city  charter  empowering  the  collector  to 
impose  without  notice  five  per  cent,  additional  amount  to  the  tax  for  delay,  conflicts 
with  the  requirement  of  uniformity,  and  is  void.  Scammon  v.  Chicago,  44  111.  269 ; 
Clayton  v.  Chicago,  Ib.  280. 

Effect  of  Omissions. — That  omissions  of  property  will  not  vitiate  the  tax 
where  "uniformity"  is  required,  see  Merritt  v.  Farris,  22  111.  303;  Dunham  v. 
Chicago,  55  111.  358 ;  High  v.  Shoemaker,  22  Cal.  363 ;  People  v.  McCreary,  34  Cal. 
432 ;  People  v.  Gerke,  35  Cal.  677 ;  but  it  has  been  held  otherwise  if  the  omission 
is  intentional  in  Weeks  v.  Milwaukee,  10  Wise.  242 ;  see  Kneeland  v.  Milwaukee,  15 
Wise.  454. 

What  does  not  Violate  the  Requirement  of  Uniformity. — A  statute  that  abuttors 
should  keep  the  street  in  front  of  their  lands  in  repair,  is  as  uniform  a  distribution 
of  the  burden  as  the  nature  of  the  case  will  permit.  Hart  v.  Gaven,  12  Cal.  476. 
Assessing  a  tax  according  to  the  valuation  of  the  preceding  year  is  not  invalid. 
Kelsey  v.  Nevada,  18  Cal.  629 ;  nor  assessing  bank  shares  as  of  a  different  date  from 
other  property.  McVeigh  v.  Chicago,  49  111.  318.  A  statute  making  the  tax  on  a 
certain  species  of  property — e.  g.,  proceeds  of  mines — assessable  and  payable  quarterly, 
does  not  violate  the  rule  of  uniformity.  State  v.  Manhattan  &c.  Co.  4  Nev.  318. 
Nor  is  the  rule  of  "  uniform  rate  "  violated  by  allowing  a  deduction  of  debts  owed 
to  be  made  from  the  valuation  of  other  property  but  not  from  that  of  national  bank 
shares.  McVeigh  v.  Chicago,  49  111.  318.  It  is  held  in  Wisconsin,  that  a  tax  upon 
shares  in  the  national  banks,  there  being  no  tax  on  shares  in  State  banks,  but  in 
place  thereof,  an  equivalent  tax  on  the  capital  of  State  banks  is  valid.  The 


506  TAXATION. 

as  to  the  objects  of  taxation,  but  is  only  intended  to  prevent  an 
arbitrary  taxation  of  property,  according  to  kind  or  quality, 

decision  was  put  upon  the  ground,  that  the  United  States  Constitution  is  controlling, 
and  overrides  the  rule  of  valuation  in  the  State  Constitution  in  that  particular  case, 
and  that  the  national  bank  shares  are  a  new  species  of  property  created  by  the 
United  States,  and  governed  by  the  rules  established  by  Congress  to  which  the 
State  law  must  yield.  Van  Slyke  v.  State,  23  Wise.  655.  An  act  for  equalizing 
assessments  by  taking  averages,  &c.,  was  held  constitutional,  in  People  v.  Solomon, 
46  111.  333.  A  statute  requiring  the  city  of  New  Orleans  to  pay  one-half  its  election 
expenses,  and  the  State  the  other  half,  it  was  held  that  the  city  could  not  complain 
of  this  as  unequal  taxation  without  showing  that  the  law  worked  injustice  to  it. 
State  v.  New  Orleans,  15  La.  Ann.  354.  The  Legislature  may  impose  a  tax  for  the 
current  year  on  property  not  before  taxable.  De  Pauw  v.  New  Albany,  22  Ind.  204 ; 
and  may  lay  an  income  tax  based  on  the  profits  or  income  of  the  preceeding  year. 
Drexel  v.  Commonwealth,  46  Penn.  St.  31 ;  see  Murchison  v.  McNeil,  1  Wins.  (N. 
C.)  No.  1  (Law),  220 ;  and  may  lay  a  tax  according  to  a  previous  assessment,  and 
such  tax  will  not  be  retrospective  nor  ex  post  facto.  Locke  v.  New  Orleans,  4  Wall. 
172;  and  may  authorize  the  reassessment  of  taxes.  Tallman  v.  Janesville,  17  Wise, 
71;  Cross  v.  Milwaukee,  19  Wise.  509;  McVeigh  v.  Chicago,  49  III.  318.  "  Uniform 
and  equal  fate  of  assessment  and  valuation  "  does  not  require  a  uniform  method  of 
valuation  of  property ;  e.  g.,  a  bank  officer  may  be  made  the  representative  of  the 
owners  in  the  listing  and  valuation  of  bank  stock.  Whitney  v.  Ragsdale,  33  Ind. 
107. 

Reassessments  are  valid  where  former  one  was  void  for  some  irregularity.  Mills 
v.  Charleton,  29  Wise.  400;  Evans  v.  Sharp,  29  Wise.  564;  Dill  v.  Roberts,  30  Wise. 
178 ;  Dean  v.  Borchsenius,  30  Wise.  236.  See  Hale  v.  Kenosha,  29  Wise.  599,  as  to 
what  taxes  are  within  the  requirement  of  uniformity. 

Taxation  and  Representation. — It  is  often  said  that  taxation  and  representation  go 
together.  This  does  not  imply  that  a  person  must  have  the  right  of  suffrage  before 
he  can  be  taxed.  Thus,  the  personal  property  of  an  unmarried  woman  may  be  taxed, 
though  she  cannot  vote.  Wheeler  v.  Wall,  6  Allen,  558.  Nor  is  the  consent  of  local 
representatives  necessary.  Thus,  it  has  been  held  that  the  Legislature  may  compel 
a  municipality  to  raise  by  taxation  money  to  pay  a  claim  against  it,  Newman  v.  Jus- 
tices, 5  Sneed  (Tenn.j,  695,  and  even  though  such  claim  is  not  valid  at  law.  Guilford 
T.  Chenango  County,  13  N.  Y.  143;  Brewster  v.  Syracuse,  19  N.  Y.  116;  Blanding  v. 
Burr,  13  Cal.  343;  Sinton  v.  Ashbury,  41  Cal.  525;  see,  also,  Beals  v.  Amador  Co.  35 
Cal.  624 ;  People  v.  Haws,  34  Barb.  69. 

But  where  the  Constitution  provided  that  "the  corporate  authorities  of  counties, 
&c.,  may  be  vested  with  power  to  assess  and  collect  taxes  for  municipal  purposes," 
it  was  held  that  the  Legislature  could  not  compel  a  municipality  to  impose  a  tax. 
People  v.  Chicago,  51  HI.  58.  And  the  same  was  held  in  Minnesota,  where  the  Con- 
stitution requires  that  taxes  shall  be  as  nearly  equal  as  may  be.  Sanborn  v.  Rice,  9 
Minn.  273. 

And  where  a  tax  has  been  levied  by  a  municipality  for  a  particular  purpose,  it  has 
been  held  that  the  Legislature  cannot  divert  it  to  another  purpose,  Nashville  v. 
Towns,  5  Sneed  (Tenn.)  186 ;  State  v.  Haben,  22  Wise.  660 ;  but  that  the  Legislature 
may  direct  the  application  of  part  of  the  revenues  raised  by  a  county  to  the  payment 
of  the  police  expenses  of  a  city  in  such  county,  see  State  v.  St.  Louis  County  Court, 


TAXATION.  507 

without  regard  to  value.  Specific  taxes  have  therefore  been 
sustained  as  a  valid  exercise  of  the  legislative  power.  Thus  a 

34  Mo  546.  That  the  State  may  authorize  commissioners  appointed  by  the  State  to 
levy  a  city  tax,  see  Baltimore  v.  State,  15  Md.  376.  But  see  People  ex  rel.  McCagg 
v.  Chicago,  51  111.  17;  Lovingstou  v.  Wider,  53  111.  302;  People  v.  Salomon,  51 
111.  37. 

State  and  National  Taxation, — Agencies  of  the  United  States  Government  cannot 
be  taxed.  Thus,  an  act  of  Congress  exempting  United  States  bonds  from  taxation 
is  valid,  and  it  seems  the  exemption  would  have  existed  without  such  act.  Newark 
City  Bank  v.  Assessors,  1  Vroom,  13 ;  Bank  of  Commerce  v.  New  York,  2  Black,  620 ; 
Bank  Tax  Case,  2  Wall.  200 ;  Van  Allen  v.  Assessors,  3  Wall.  573;  People  v.  Com- 
missioners, 4  Wall.  244  ;  Bradley  v.  People,  Ib.  459 ;  The  Banks  v.  Mayor,  7  Wall.  16 ; 
Bank  v.  Supervisors,  Ib.  26 ;  State  v.  Jackson,  33  N.  J.  450.  It  seems  a  succession 
tax  on  an  estate  consisting  in  part  of  United  States  securities  is  good.  Strode  v. 
Commonwealth,  52  Penn.  St.  181 ;  but  see  People  ex  rel.  Babbitt  v.  Comm'rs  of  Taxes 
of  N.  Y.  cited  at  p.  64  of  Wells'  Report  on  Revision  of  Tax  Laws.  It  was  held  in 
New  York  that  the  exemption  does  not  extend  to  the  United  States  treasury  notes 
and  certificates  of  indebtedness,  People  v.  Hoffman,  37  N.  Y.  9 ;  but  this  and  other 
cases  were  reversed  and  the  doctrine  overruled  by  the  United  States  Supreme  Court, 
and  such  property  was  pronounced  exempt  in  The  Banks  v.  The  Mayor,  7  Wall.  16, 
and  Bank  v.  Supervisors,  Ib.  26.  In  People  v.  Comm'rs,  37  Barb.  635,  it  was  held 
that  the  exemption  does  not  extend  to  United  States  securities  issued  before  the  act, 
but  this  must  be  considered  as  entirely  overruled  by  the  cases  cited  above. 

A  tax  on  the  capital  of  a  bank  is  a  tax  on  such  securities,  if  the  capital  is  invested 
in  them.  Bank  Tax  Case,  2  Wall.  200  ;  Whitney  v.  Madison,  23  Ind.  331 ;  otherwise, 
of  a  tax  on  the  shares  of  individual  stockholders,  Van  Allen  v.  Assessors,  3  Wall. 
573.  But  as  the  national  banks  are  instrumentalities  of  the  Government,  the  shares 
in  such  banks  can  only  be  taxed  by  consent  of  Congress,  and  in  the  manner  that 
Congress  prescribes.  Van  Allen  v.  Assessors,  3  Wall.  573.  Many  State  decisions 
are  opposed  to  this  position,  but  their  protest  against  the  doctrine  is  of  course  un- 
availing. SeeUtica  v.  Churchill,  33  N.  Y.  161 ;  People  v.  Barton,  44  Barb.  148 ;  Pitts- 
burg  v.  First  National  Bank,  55  Penn.  St.  45  ;  People  v.  Bradley,  39  111.  130 ;  McVeigh 
v.  Chicago,  49  111.  318. 

The  Union  Pacific  Railroad  is  not  a  United  States  instrumentality,  and  so  exempt 
from  State  taxation.  Union  Pac.  R.  R.  v.  Lincoln  Co.  1  Dillon  C.  C.  314  ;  Thompson 
v.  Pacific  R.  R.  9  Wall.  579.  In  this  case  the  Supreme  Court  said,  that  the  railroad 
is  at  most  an  agent  which  Congress  employs  or  may  employ,  and  the  general  property 
of  United  States  agents  is  not  exempt  from  State  taxation.  But,  in  Massachusetts, 
the  road-bed  of  a  railroad  has  been  held  exempt  from  local  taxation,  on  the  ground 
that  it  was  public  property.  Worcester  v.  Western  &c.  R.  R.  4  Mete.  564. 

On  the  other  hand,  the  United  States  cannot  tax  agencies  and  instruments  of  the 
State  Governments.  Thus,  a  stamp  tax  on  writs  and  process  of  the  State  courts  is 
invalid.  Craig  v.  Dimmock,  47  111.  308  ;  Warren  v.  Paul,  22  Ind.  276  ;  Jones  v.  Estate 
of  Keep,  19  Wise.  369  ;  Fifield  v.  Close,  15  Mich.  505 ;  Smith  v.  Short,  40  Ala.  385  ; 
Union  B'k  v.  Hill,  3  Cold.  (Tenn.)  325.  Nor  can  Congress,  as  very  generally  held  by 
the  State  courts,  prescribe  rules  of  evidence  for  State  courts,  or  prescribe  that  a  con- 
tract shall  there  be  held  invalid  for  want  of  a  stamp.  Craig  v.  Dimmock,  47  111.  308 ; 
Carpenter  v.  Snelling,  97  Mass.  452 ;  Clemens  v.  Conrad,  19  Mich.  170 ;  Haight  v- 


508  TAXATION. 

road  tax  in  Illinois,*  a  bank  tax  in  Massachusetts^  and  a  tax 
on  merchants,  and  bankers'  licenses  in  California,  J  have  all  been 
held  legal  and  binding.  | 

*  Sawyer  v.  City  of  Alton,  3  Scammon,  ^  People  v.  Dorr,  Same  v.  Hussey,  not  yet 

p.  127.  reported. 

f  Portland  Bank  v.  Apthorp,  12  Mass.  p.  ||  See,  also,  in  Texas,  Aulanier  v.  Gov.  1 

252.  Texas,  653 ;  see  contra,  Grow  v.  The  State  of 

Missouri,  13  Miss.  R. 

Grist,  64  N.  C.  739 ;  Griffin  v.  Ranney,  35  Conn.  239 ;  Green  v.  Holway,  101  Mass. 
243;  Sarnmon  v.  Holloway,  21  Mich.  162;  Hunter  v.  Cobb,  1  Bush,  239;  People  v. 
Gates,  43  N.  T.  40 ;  Moore  v.  Moore,  47  N.  Y.  487. 

The  Supreme  Court  of  the  United  States,  in  The  Collector  v.  Day,  11  Wall.  113, 
directly  affirmed  the  general  doctrine  that  the  United  States  cannot  tax  the  instru- 
mentalities of  the  State  Governments,  and  held  that  an  income  tax  could  not  be 
imposed  upon  a  State  judge  in  respect  of  his  salary.  The  exemption  of  State  in- 
strumentalities from  national  taxation  was  placed  upon  exactly  the  same  ground, 
and  was  made  as  broad  as  the  exemption  of  the  national  instrumentalities  from  State 
taxation. 

A  State  tax  on  State  writs  and  process  is  valid.  Cone  v.  Donaldson,  47  Penn. 
St.  363. 

The  legal  tender  act  has  no  effect  upon  State  taxes  when  they  are  made  payable 
by  law  in  coin.  State  Treasurer  v.  Collector  of  Sangamon  Co.  28  111.  509. 

The  United  States  may  tax  by  license  laws  a  business  prohibited  by  State  laws, 
License  Tax  Cases,  5  Wall.  462  ;  but,  on  the  other  hand,  the  States  may  tax  or  may 
prohibit  a  business  taxed  under  a  license  law  by  Congress,  at  least  when  Congress  pro- 
vides that  its  act  in  laying  the  license  tax  shall  not  abridge  such  power  of  the  States. 
Pervear  v.  Commonwealth,  5  Wall.  475. 

Possessory  rights  of  miners  may  be  taxed  by  the  State,  though  the  land  itself 
belongs  to  the  United  States,  and  is  therefore  Exempt.  Hale  &c.  Co.  v.  Storey  Coun- 
ty, 1  Nev.  104. 

The  scope  of  this  work  does  not  embrace  the  subject  of  State  taxation  in  its  rela- 
tions with  the  power  of  Congress  to  regulate  commerce,  but  the  following  are  very 
recent  cases  upon  the  subject :  Crandall  v.  Nevada,  6  Wall.  382 ;  Woodruff  v.  Parham, 
8  Wall.  123  ;  Hinson  v.  Sothe,  8  Wall.  148;  Case  of  State  Freight  Tax,  15  Wall.  232 ; 
State  Tax  on  Railway  Gross  Receipts,  15  Wall.  284 ;  Sears  v.  Warren  Co.  36  Ind.  267. 

Double  Taxation  and  Place  of  Taxation. — Where  the  Constitution  authorized  taxes 
on  income  and  licenses,  but  prohibited  a  tax  on  the  property  from  which  the  income 
so  taxed  was  derived,  or  the  capital  employed  in  the  business  licensed,  it  was  held, 
that  although  the  sheriff's  income  was  taxed,  his  office  might  also  be  taxed.  Gilke- 
son  v.  Frederick  Justices,  13  Gratt.  577.  An  act  imposing  a  tax  on  the  personal 
property  in  another  State  of  persons  domiciled  in  the  State  laying  the  tax  is  valid. 
Boyer  v.  Jones,  14  Ind.  354  ;  but  see  Hoyt  v.  Comm'rs  of  Taxes  of  N.  Y.  23  K  Y.  224. 
That  the  State  may  tax  non-residents  doing  business  in  the  State  as  if  residents,  see 
Duer  v.  Small,  4  Blatch.  C.  C.  263  ;  and  may  tax  alien  inhabitants  for  municipal  pur- 
poses. Frantz  Appeal,  52  Penn.  St.  367.  Where  a  person  does  business  habitually  iu 
a  town,  though  he  resides  elsewhere,  his  income  may  be  taxed  in  the  former  place, 
Worth  v.  Fayetteville,  1  Wins.  (N.  C.)  No.  2  (Eq.)  70. 
'  Personal  •  property  may  also  be  taxed  where  situated,  without  reference  to  the 


TAXATION.  509 

In  construing  the  clause  in  regard  to  uniformity  of  taxation 
in  Louisiana,  it  has  been  held  that  this  provision  applies  as  well 

domicil  of  the  owner.  Thus,  shares  owned  by  a  non-resident  in  a  railroad  incor- 
porated by  the  State  laying  the  tax.  Faxton  v.  McCosh,  12  Iowa,  527 ;  Maltby  v. 
Reading  R.  R.  52  Penn.  St.  140.  But  see  "  Case  of  State  Tax  on  Foreign  Bondhold- 
ers," 15  Wall.  300,  which  holds  that  a  State  cannot  tax  bonds  owned  by  non-resi- 
dents, though  issued  by  a  railroad  incorporated  by  the  State  and  secured  by  a  mort- 
gage on  the  property  of  the  road  within  the  State.  That  a  State  cannot  tax  the 
bonds  of  a  railroad  chartered  by  another  State,  held  by  a  person  not  a  citizen  of  the 
State  imposing  the  tax,  although  the  bonds  are  there  situate,  see  Northern  Central 
R.  R.  v.  Jackson,  7  Wall.  262. 

Who  may  Complain. — Only  those  adversely  affected.  Morgan  v.  Monmouth  PI.  R. 
Co!  2  Dutch.  99 ;  People  v.  Law,  34  Barb.  494.  The  bondholders  of  a  municipality 
not  complaining,  the  taxpayers  cannot  complain  of  exemptions  from  taxation.  Gil- 
man  v.  Sheboygan,  2  Black,  510. 

What  may  be  Sold  for  Taxes. — The  fee  simple  may  be,  although  there  is  a  contin- 
gent remainder  to  unborn  persons.  Johnson  v.  Babcock,  16  N.  Y.  246.  It  has  been 
held  in  Michigan,  by  a  divided  court,  that  a  statute  authorizing  property  of  A.  in 
the  hands  of  B.  to  be  sold  for  B.'s  tax,  and  giving  a  remedy  to  A.  against  B.,  is  valid. 
Sears  v.  Cottrell,  5  Mich.  250. 

Particular  Constitutional  Provisions. — The  following  are  decisions  interpreting 
some  special  provisions  found  in  various  Constitutions  : 

New  YorTc. — "Every  law  which  imposes,  continues,  or  revives  a  tax  shall  distinctly 
state  the  tax,  and  the  object  to  which  it  is  to  be  applied,  and  it  shall  not  be  sufficient 
to  refer  to  any  other  law  to  fix  such  tax  or  object."  A  statute  which  merely  enacts 
that  the  expenses  of  laying  out,  &c.,  a  certain  avenue  shall  be  paid  in  the  manner  pro- 
vided in  another  act,  without  specifying  or  limiting  the  amount  to  be  raised,  is  invalid. 
Hanlon  v.  Supervisors  of  Westchester  Co.  57  Barb.  383.  Providing  that  the  tax  shall 
be  paid  into  the  "  general  fund  "  which  is  at  the  disposal  of  the  Legislature,  is  a 
compliance  with  this  provision.  People  v.  Supervisors  of  Orange  Co.  17  N.  Y.  235. 
The  statute  must  state  the  object  of  the  tax,  though  it  is  only  an  amendment  of  an- 
other statute.  People  v.  Moringe,  47  Barb.  642.  A  local  assessment  for  improve- 
ment is  not  such  a  tax  as  comes  within  this  provision.  In  the  Matter  of  Fox,  6 
Lans.  92. 

Michigan. — A  similar  provision,  it  was  held,  does  not  apply  where  the  Constitution 
itself  appropriates  the  tax.     Wolcott  v.  People,  17  Mich.  68. 

Maryland. — "Every  person  holding  property  in  the  State  ought  to  contribute  his 
proportion  of  public  taxes  for  the  support  of  government  according  to  his  actual 
worth  in  real  or  personal  property,  yet  fines,  duties,  or  taxes  may  properly  and  justly 
be  imposed  or  laid  with  a  political  view  for  the  good  government  and  benefit  of  the 
community."  A  tax  on  collateral  inheiitances  was  held  valid,  in  Tyson  v.  State,  28 
Md.  577. 

Iowa. — "  The  property  of  all  corporations  for  pecuniary  profit  shall  be  subject  to 
taxation  the  same  as  that  of  individuals."  A  statute  imposing  a  tax  upon  40  per 
cent,  of  the  gross  receipts  of  express  companies,  as  the  personal  property  of  such 
companies,  at  the  same  rate  as  the  personal  property  of  individuals,  and  also  impos- 
ing a  tax  on  their  real  and  personal  property,  is  not  unconstitutional,  although  there 
is  no  law  taxing  the  earnings  of  individuals.  Such  a  statute  is  also  neither  a  local 


510  TAXATION. 

to  municipal  and  parochial  as  to  State  taxes,  and  that  an  ordi- 
nance of  a  parish  police  jury,  to  compel  the  inhabitants  of  a  par- 
ticular portion  of  the  parish  to  pay  for  certain  embankments,  is 
unconstitutional.  * 

Many  interesting  cases  have  arisen  on  the  subject  of  exemp- 

*  Gumming  v.  Police  Jury,  9  La.  An.  R.  to  be  proportional  and  reasonable.     The  In- 

503.  habitants  of  Norwich  v.  The  County  Commis- 

In  regard  to  "proportional  taxation"  in  sioners  of  Hampshire,  13  Pick.  60.  A  city 
Massachusetts,  see  City  of  Lowell  v.  Hadley,  by-law  requiring  the  owners  or  occupants  of 
8  Met.  181 ;  City  of  Boston  v.  Shaw,  1  Met.  houses  to  clear  the  snow  from  the  sidewalks 
137.  An  act  providing  that  the  expense  of  in  front  of  their  property,  is  not  strictly  a  by- 
building  a  particular  bridge  shall  be  borne  in  law  levying  a  tax.  It  is  rather  to  be  regarded 
part  by  the  county  within  which  it  is  situated,  as  a  police  regulation.  The  duty  required  is 
when  by  the  operation  of  the  general  laws  a  duty  upon  the  person  in  respect  to  the  prop- 
of  the  commonwealth  the  expense  would  be  erty  which  he  holds,  and  is  valid  under  the 
borne  wholly  by  the  town  within  which  it  is  Constitution  of  Massachusetts.  Goddard,  Petr. 
situated,  does  not  violate  the  constitutional  16  Pick.  504. 
provision  of  Massachusetts  requiring  taxation 

nor  a  special  law  within  tLe  constitutional  prohibition.  U.  S.  Express  Co.  v.  Elly- 
son,  28  Iowa,  370.  (There  seems  to  be  no  provision  that  the  rule  of  taxation  shall 
be  uniform).  See  provision  as  to  "  particular  services "  next  below,  under 
"  Indiana." 

Indiana. — "  The  particular  services  of  individuals  shall  not  be  required  without 
compensation."  This  is  violated  by  a  statute  requiring  attorneys  to  defend  indigent 
criminals  without  compensation.  Blythe  v.  State,  4  Ind.  525.  It  was  held  in  Iowa 
that  a  maximum  compensation  in  such  cases  might  be  fixed  by  statute.  Samuels  v. 
Dubuque,  13  Iowa,  536.  A  similar  statute  requiring  the  gratuitous  services  of  attor- 
neys was  held  invalid  in  Wisconsin.  County  of  Dane  v.  Smith,  13  Wise.  585. 

Georgia. — Taxation  of  property  shall  be  ad  valorem  only,  and  uniform  upon  all 
species  of  property  taxed."  Const,  of  1868,  Art.  I,  §  27.  A  tax  of  20  cents  per 
gallon  on  the  sales  of  liquor  was  held  valid,  in  Kenny  v.  Harwell,  42  Geo.  416.  As 
to  what  business  can  be  reached  by  an  ad  valorem  tax,  see  Hirsh's  Case,  21  Gratt. 
785. 

Missouri. — "  Taxation  upon  property  shall  be  in  proportion  to  value."  This  does 
not  apply  to  an  income  tax.  Glasgow  v.  Rowse,  43  Mo.  479. 

Massachusetts. — The  provision  of  the  Constitution  that  taxes  shall  be  "  propor- 
tional "  is  not  directory,  and  a  tax  of  one-fifteenth  on-  dividends  of  non-resident 
shareholders  is  not  ''proportional."  Oliver  y.  Washington  Mills,  11  Allen,  268.  A 
statute  taxing  non-resident  shareholders  of  national  banks  in  the  town  where  the 
bank  is  situated,  at  the  local  rates  as  fixed  by  a  valuation  in  which  the  value  of  those 
shares  is  not  included,  the  tax  itself  being  for  State  purposes,  does  not  violate  the 
provision  requiring  taxes  to  be  "  proportional,"  and  is  valid.  Prov.  Inst.  for  Savings 
T.  Boston,  101  Mass.  575.  A  tax  upon  savings  banks  according  to  the  average  of 
deposits  for  the  half  year,  was  held  to  be  an  excise  or  duty  on  the  franchise,  and 
.valid.  Commonwealth  v.  People's  &c.  B'k,  5  Allen,  428.  That  an  "excise"  must 
be  equal  on  all  who  exercise  the  particular  employment  or  enjoy  the  particular  com- 
modity taxed,  see  Oliver  v.  Washington  Mills,  11  Allen,  268.  A  tax  on  the  capital 
stock  at  par  of  any  foreign  mining  corporation,  having  an  office  for  business  in  the 
State,  is  a  tax  on  a  commodity,  and  valid.  Att'y  Gen.  v.  Bay  State  Mining  Co.  99 
Mass.  148. 


EXEMPTIONS  FROM  TAXATION.  511 

tion  from  taxation.  It  has  been  decided  that,  where  exemption 
from  taxation  is  made  a  condition  of  a  grant,  it  is  in  the  nature 
of  a  contract :  the  grant  and  its  conditions  are  equally  inviola- 
ble.* But  where  the  exemption  results  from  a  general  law, 
and  does  not  form  a  portion  of  a  grant,  any  subsequent  Legis- 
lature may  repeal  the  exemption.f  In  New  Hampshire,  it  has 
been  said  that  the  Legislature  could  pass  laws  conferring  ex- 
emptions from  taxation,  which  would  be  valid  till  repealed. 
But  it  was  intimated  that  it  was  not  competent  for  the  Legisla- 
ture to  make  any  contract  by  which  a  party  should  be  perpetu- 
ally exempted  from  taxation,  upon  the  ground  that  no  such 
power  was  delegated  to  the  Legislature, — that  it  could  not 
grant  away  the  essential  attributes  of  sovereignty  or  right  of 
eminent  domain ;  that  these  did  not  seem  to  furnish  the  subject- 
matter  of  a  contract.  £ 

By  a  statute  of  1793,  in  Massachusetts,  all  persons  who  had 
held  the  office  of  a  subaltern,  or  of  higher  rank,  were  exempted 
from  militia  duty.  This  statute  was  repealed  on  the  £th  of 
March,  1800,  and  the  future  exemption  of  militia  officers  was 
limited  to  such  as  should  complete  a  term  of  five  years'  service, 
or  be  superseded.  In  March,  1810,  the  last  statute  was  repealed 
and  a  new  class  of  exempts  defined,  including  the  subalterns 
and  officers  mentioned  in  the  act  of  1793,  on  condition  of  an 
annual  payment  of  two  dollars.  The  case  was  presented  of  a 
subaltern  officer,  honorably  discharged  in  May,  1799,  and  who, 
under  the  operation  of  the  act  of  1793,  was  exempted  from 
militia  duty.  Under  the  act  of  1810  a  fine  was  imposed  on 
him,  and  it  was  resisted  on  the  ground  that  an  exemption  once 
acquired  under  existing  laws  could  not  be  revoked ;  it  being 
argued  that  the  defendant  had  a  vested  right  to  his  exemption. 
But  the  objection  was  overruled;  and  while  admitting  that 
there  might  be  cases  in  which  it  would  be  deemed  a  breach  of 
the  public  faith  to  revoke  such  exemptions,  the  court  said  that 
they  were  not  authorized  to  weigh  those  motives,  nor  interfere 

*   State    of   New    Jersey    v.   Wilaon,   *7  223 ;   Osborne  v.   Humphrey,  7  Conn.  335 ; 

Cranch,  164.  Parker  v.  Redfield,  10  Conn.  490;  Langdon 

t  Herrick  v.   Randolph,   13  Verm.   525.  v.  Litchfield,  11  Conn.  251. 
See  cases  in  Connecticut  as  to  exemption  from          \  Brewster  v.  Hough,  10  N.  H.  145. 
taxation.    Atwater  v.  Woodbridge,  6  Conn. 


512  RELIGIOUS  TOLERATION. 

with  the  right  of  the  State  to  the  military  services  of  the 
citizen.* 

The  Constitution  of  Indiana  contains  a  provision,  that  no 
man's  particular  services  shall  be  demanded  without  just  com- 
pensation :  f  under  this  it  has  been  held  that  a  statute  requir- 
ing professional  services  to  be  gratuitously  rendered,  would  be 
unconstitutional  and  void;  and  it  was  also  said,  that  a  law 
which  requires  gratuitous  services  from  a  particular  class  in 
office,  imposes  a  tax  upon  that  class  clearly  in  violation  of  the 
fundamental  provision  for  a  uniform  and  equal  rate  of  assess- 
ment and  taxation  upon  all  citizens.  J 

The  Constitution  of  Tennessee  contains  the  same  provision 
declaring  "  that  no  man's  particular  services  shall  be  demanded, 
or  property  taken  or  applied  to  public  use  without  the  consent 
of  his  representatives,  or  without  just  compensation  being  made 
therefor."  The  use  of  the  disjunctive  conjunction  is  worthy  of 
notice.  || 

Religious  Toleration. — Most,  if  not  all  of  our  State  Consti- 
tutions contain  provisions  designed  to  secure  the  great  principle 
of  freedom  of  conscience.  But  there  has  been  so  little  disposi- 
tion to  infringe  this  class  of  guaranties,  that,  like  the  other 
clauses  in  regard  to  attainder,  freedom  of  the  press,  the  right  to 
bear  arms,  and  standing  armies,  they  have  been  very  rarely 
brought  within  the  range  of  judicial  interpretation.  Some  few 
cases  may  be  noticed.  (#)  • 

*  Commonwealth  v.  Baird,  12  Mass.  443.  \  Webb  v.  Baircl,  6  Indiana,  13. 

f  Constitution  of  Indiana,  art.  i,  §  21.  |  Cons,  of  Tennessee,  art.  i,  §  21. 

(a)  The  Constitution  of  California  declares  that  "  all  men  are  by  nature  free  and 
independent,  and  have  certain  inalienable  rights,  among  which  are  those  of  enjoying 
life  and  liberty,  acquiring,  possessing,  and  protecting  property,  and  pursuing  and 
obtaining  safety  and  happiness,"  ,and  "  the  free  exercise  and  enjoyment  of  religious 
profession  and  worship,  without  discrimination  or  preference,  shall  forever  be  allowed 
in  this  State."  It  was  held  that  "  an  act  for  the  better  observance  of  the  Sabbath," 
prohibiting  the  pursuit  of  business  on  that  day,  etc.,  conflicted  with  the  above  clauses, 
and  was  void.  Ex  parte  Newman,  9  Cal.  502.  But  this  case  was  overruled  and  such 
statute  sustained  in  Ex  parte  Andrews,  18  Cal.  678,  and  Ex  parte  Bird,  19  Cal.  130. 
Similar  legislation  was  upheld  in  Frolichstein  v.  Mayor  &c.  40  Ala.  725 ;  Gabel  y. 
Houston,  29  Tex.  335;  Voglesong  v.  State,  9  Ind.  112.  But  see  remarks  of  Perkins 
J.,  in  Thomasson  v.  State,  15  Ind.  449.  A  law  closing  theaters  on  Sunday  is  valid^ 
Lindenmuller  v.  People,  33  Barb.  548.  It  is  no  reason  for  the  removal  of  a  testa- 
mentary guardian  that  he  is  a  Universalist  or  an  infidel.  Maxey  v.  Bell,  41  Geo.  183. 


RELIGIOUS  TOLERATION.  513 

In  Maine,  the  Constitution  declares  substantially  that  all 
men  have  a  natural  and  inalienable  right  to  worship  Almighty 
God  according  to  the  dictates  of  their  own  conscience ;  that 

O  " 

no  one  shall  be  hurt,  molested,  or  restrained  in  his  person, 
liberty,  or  estate,  for  worshiping  God  after  his  own  conscience  ; 
and  that  no  subordination  or  preference  of  any  sect  or  denom- 
ination to  another  shall  ever  be  established  by  law ;  nor  shall 
any  religious  tests  be  required  as  a  qualification  for  any  office 
or  trust  under  the  State.*  It  also  provides  as  follows :  "  A 
general  diffusion  of  the  advantages  of  education  being  essential 
to  the  preservation  of  the  rights  and  liberties  of  the  people,  to 
promote  this  important  object  the  Legislature  are  authorized, 
and  it  shall  be  their  duty,  to  require  the  several  towns  to  make 
suitable  provision,  at  their  own  expense,  for  the  support  and 
maintenance  of  public  schools."  f  Under  this  general  author- 
ity an  act  was  passed  in  that  State  giving  to  school  committees 
the  power  to  "  direct  the  general  course  of  instruction,  and  what 
books  shall  be  used  in  the  respective  schools."  In  a  case  aris- 
ing upon  this  act,  it  has  been  held  by  the  Supreme  Court  of 
Maine,  that  a  requirement  by  a  superintending  school  commit- 
tee, that  the  Protestant  version  of  the  Bible  should  be  read  in 
the  public  schools  of  the  town,  by  the  scholars  who  are  able 
to  read,  is  in  violation  of  no  constitutional  provision,  and  is 
binding  on  all  the  members  of  the  schools,  though  composed 
of  divers  religious  sects;  and  it  was  said,  "The  Legislature 
establishes  general  rules  for  the  guidance  of  its  citizens.  It 
does  not  necessarily  follow  that  they  are  unconstitutional,  nor 
that  a  citizen  is  to  be  legally  absolved  from  obedience,  because 
they  may  conflict  with  his  conscientious  views  of  religious  duty 
or  right.  To  allow  this,  would  be  to  subordinate  the  State  to 
the  individual  conscience.  A  law  is  not  unconstitutional  be- 
cause it  may  prohibit  what  a  citizen  may  conscientiously  think 
right,  or  require  what  he  may  conscientiously  think  wrong. 
The  State  is  governed  by  its  own  views  of  duty.  The  right  or 
wrong  of  the  State  is  the  right  or  wrong  as  declared  by  legis- 
lative acts  constitutionally  passed ; "  and  it  was  held,  that  for  a 

*  Constitution  of  Maine,  art.  i,  §  3.  f  Constitution  of  Maine,  art.  viii. 

33 


514  RELIGIOUS  TOLERATION. 

refusal  to  read  the  books  thus  prescribed,  the  committee  might, 
if  they  saw  fit,  expel  the  disobedient  scholar.* 

In  the  State  of  Massachusetts,  it  has  been  held,  on  consid- 
eration of  the  second  article  of  their  Bill  of  Rights,  which  is 
similar  to  the  constitutional  provisions  of  Maine  in  regard  to 
religious  liberty  above  cited,  that  the  rejection  of  a  witness  as 
incompetent  by  reason  of  his  want  of  religious  belief,  was  not 
in  violation  of  it ;  the  court  saying, "  It  was  intended  to  prevent 
prosecution  by  punishing  any  one  for  his  religious  opinions,  how- 
ever erroneous  they  might  be."  f 

Connected  with  this  subject,  I  may  here  call  attention  to 
the  original  provisions  of  the  Constitution  of  Massachusetts ; 
which,  to  a  certain   extent,  recognized  and  declared  a  relation- 
ship and  connection  between  the  church  and  the  State.     The 
third  article  of  the  original  Massachusetts  Declaration  of  Rights 
was  as  follows :  "  The  people  have  a  right  to  invest  their  Legis- 
lature with  power  to  authorize  and  require,  and  the  Legislature 
shall  from  time  to  time  authorize  and  require,  the  several  towns, 
parishes,  precincts,  and  other  bodies  corporate  and  politic,  and 
religious  societies,  to  make  suitable  provision,  at  their  own  ex- 
pense, for  the  institution  of  the  public  worship  of  God,  and  for 
the  support  and  maintenance  of  public  Protestant  teachers  of 
piety,  religion,  and  morality,  in  all  cases  where  such  provision 
shall  not  be  made  voluntarily."     And  it  was  further  declared 
in  the  same  article,  "  that  the  people  of  this  commonwealth 
have  a  right  to,  and  do,  invest  their  Legislature  with  authority 
to  enjoin  upon   all  their  subjects,  an  attendance  upon  the  in- 
structions of  the  public  teachers  aforesaid,  at  stated  times  and 
seasons,  if  there  be  any  on  whose  instructions  they  can  con- 
scientiously and  conveniently  attend."     In  Adams  v.  Howe  et 
al.  14  Mass.  346.,  the  object  and  purpose  of  these  clauses  is 
stated  as  follows :  "  Three  great  objects  appear  to  have  been 
the  influential  causes  of  this  solemn  declaration  of  the  will  of 
the  people  :  1.  To  establish  at  all  events,  liberty  of  conscience 
and  choice  of  the  mo.de  of  worship ;  2.  To  assert  the  right  of 

*  Donolioev.  Richards,  38  Maine,  379, 410.     am  aware,  which  touches  on  what  has  been 
This  is  the  only  judicial  decision  of  which  I     familiarly  called  the  Higher  Low. 

f  Thurston  v.  Whitney,  2  Cush.  104. 


RELIGIOUS  TOLERATION.  515 

the  State,  in  its  political  capacity,  to  require  and  enforce  the 
public  worship  of  God;  3.  To  deny  the  right  of  establishing 
any  hierarchy,  or  any  power  in  the  State  itself  to  require  con- 
formity to  any  creed  or  formulary  of  worship." 

The  provision  was  soon,  however,  considered  unfriendly  to 
the  great  interests  of  religious  liberty ;  several  statutes  were 
passed  designed  to  relieve  individuals  from  any  necessity  of 
supporting  the  dominant  religious  sect  in  the  State ;  and  various 
cases  are  to  be  found  in  the  Massachusetts  reports,  which  are  of 
much  interest  upon  the  subject  to  which  they  relate.  So,  under 
this  clause  it  was  held  that  a  person  claiming  ministerial  taxes 
must  be  the  public  teacher  of  one,  and  that  an  incorporated, 
society.* 

But  these  decisions  are  now  of  little  practical  importance, 
as  the  provision  was  struck  from  the  Bill  of  Rights  by  a  popu- 
lar amendment  of  the  Constitution  in  the  year  1833.  It  may 
be  that  as  the  cycles  of  human  affairs  revolve,  the  interest  of 
the  questions  connected  with  these  decisions,  will  again  become 
actual  and  pressing,  f 

Under  the  first  Constitution,  or  charter,  of  the  State  of 
Connecticut,  also,  provision  for  the  support  and  maintenance  of 
religious  worship  was  treated  as  a  duty  resting  on  the  State ; 
and  that  provision  was  made  and  carried  into  effect  through 
the  instrumentality  of  local  ecclesiastical  societies,  established 
by  the  State,  through  its  legislative  power ;  and  under  that 

*  See  Barnes  v.  First  Parish  in  Falmouth,  but  little  aid  in  the  construction  of  the  enact-. 
6  Mass.  400,  where  the  general  character  of  ing  parts.  It  is  not  unfrequently  merely  in- 
the  constitutional  provision  is  discussed  ;  troductory  to  the  first  section,  and  it  appears 
Turner  v.  Second  Precinct  in  Brookfield,  7  to  me  that  it  was  so  used  in  this  statute." 
Mass.  60.  See  also,  Kendalls  v.  The  Inhabit-  Holbrook  v.  Holbrook,  1  Pick.  248. 
ants  of  Kingston,  5  Mass.  524 ;  see  Adams  v.  In  another  case  it  was  said,  "  Where  the 
Howe,  14  Mass.  341,  as  to  the  constitutional-  provisions  of  two  statutes  are  dissimilar  but 
ity  <>f  certain  exemptions  from  the  operation  not  repugnant,  a  party  may  pursue  'the  pro- 
of the  constitutional  clause  created  by  statute,  visions  of  either.  As  if  by  one  statute  juris- 
See  also,  Holbrook  v.  Holbrook,  1  Pick.  218.  diction  of  a  matter  be  given  to  one  court,  and 
for  another  case  on  exemptions.  See  also,  afterwards  by  a  new  statute  the  same  matter 
Gage  v.  Currier,  4  Pick.  399.  is  made  cognizable  by  another  court,  a  p;<rty 

f  Many  points  of  a  general  bearing  will  may  select  either  tribunal.     So,  if  a  special 

be  found  decided  in  the   cases  to  which  this  statute  providing  that  the  inhabitants  of  a 

controversy  gave  rise.     So,  in  a  case  on  the  particular  town  may  separate  from  a  religious 

Massachusetts  statute,  exempting  parties  from  society  on  certain  conditions,  and  a  general 

the  constitutional  obligation  to  support  the  statute  is  passed  dissimilar  but  not  repugnant, 

church,  the  Supreme  Court  of  that  State  said,  it  is  sufficient  for  a  person  to  bring  himself 

per  Wilde  J. :  "In  many  statutes  it  will  be  within    the    provisions  of  either."     Gage  v. 

found  that  the  preamble  states  imperfectly  Currier,  4  Pick.  399. 
the  views  of  the  Legislature,  and  can  afford 


516  DIVORCES. 

Constitution  the  General  Assembly  constantly  exercised  the 
power  of  establishing  and  dividing  local  ecclesiastical  societies ; 
but  the  present  Constitution  of  the  State  provides*  that  "no 
person  shall,  by  law,  be  compelled  to  join  or  support,  nor  to  be 
classed  with  or  associated  to,  any  congregation,  church,  or  re- 
ligious association ; "  and  under  this  Constitution  it  has  been 
there  decided  that  it  is  not  competent  for  the  Legislature  to 
divide  an  ancient  local  ecclesiastical  society,  f 

Divorces. — Legislative  acts  granting  divorces  from  the  mar- 
riage tie,  like  the  still  more  objectionable  class  of  acts  of  at- 
tainder, derive  their  origin  from  the  early  periods  of  English 
history,  when  the  line  between  legislative  and  judicial  power 
was  feebly  drawn  and  ill  understood,  and  when  private  rights 
were  almost  completely  at  the  mercy  of  violent  and  reckless  par- 
tisan legislation.  But  that  age  has  fortunately  passed,  and  the 
marked  improvement  that  is  visible  in  our  jurisprudence  on 
the  subject  of  legislative  divorces  deserves  special  comment. 
The  facility  with  which  laws  annulling  the  marriage  contract 
were  obtained  from  the  Legislatures  of  the  several  States,  in 
our  early  history,  was  discreditable  to  our  system ;  but  many 
of  our  recent  Constitutions  have  shown  their  increased  respect 
for  the  sacred  institution  of  marriage  by  prohibiting,  expressly 
and  absolutely,  all  divorces,  except  such  as  are  granted  by 
courts  of  justice.  Some  of  the  clauses  are  here  given  : 

New  York. — "  Nor  shall  any  divorce  be  granted  otherwise  than  by  due 
judicial  proceedings."  J 

California. — "  No  divorce  shall  be  granted  by  the  Legislature."  || 
Missouri. — "  The  General  Assembly  shall  not  have  power  to  grant  a  divorce 
in  any  case."^[ 

Arkansas. — "  The  General  Assembly  shall  not  have  power  to  pass  any  bill 
of  divorce,  but  may  prescribe  by  law  the  manner  in  which  such  cases  shall  be  in- 
vestigated in  the  courts  of  justice,  and  divorces  granted.** 

Texas. — "  No  divorce  shall  be  granted  by  the  Legislature."  f  f 
Wisconsin. — "  The  Legislature  shall  never  grant  any  divorce."  J J 
Tennessee. — "  The  Legislature  shall  have  no  power  to  grant  divorces,  but  may 
authorize  the  courts  of  justice  to  grant  them  for  such  causes  as  maybe  specified 

*  Cons,  of  1818,  art.  viii,  §  1.  ||  Constitution  of  California,  art.  iv,  §  26. 

f  The  Second  Eccl.  Soc'y  of  Portland  v.  Tf  Constitution  of  Missouri,  art.  iii,  §  32. 

The  First  Eccl.  Soc'y  of  Portland,  23  Conn.  **  Constitution  of  Arkansas,  art.  iv,  §  24. 

255.  ft  Constitution  of  Texas,  art.  vii,  §  18. 

\  Constitution  of  New  York,  art.  i,  g  10.  \\  Constitution  of  Wisconsin,  art.  iv,  §  24. 


TITLES   OF   LAWS.  517 

by  law ;  provided  that  such  laws  be  general  and  uniform  in  their  operation 
throughout  the  State."  * 

Indiana. — "  The  General  Assembly  shall  not  pass  local  or  special  laws  in 
any  of  the  following  enumerated  cases  : 

"  Granting  divorces.  *  *  * 

"  In  all  the  cases  enumerated  in  the  preceding  sections,  and  in  all  other  cas^s 
where  a  general  law  can  be  made  applicable,  all  laws  shall  be  general,  and  of  uni- 
form operation  throughout  the  State."  f 

Michigan. — "  Divorces  shall  not  be  granted  by  the  Legislature."  J 
Louisiana. — "  No  divorce  shall  be  granted  by  the  Legislature."  || 
Iowa. — "  No  divorce  shall  be  granted  by  the  General  Assembly."  ^[ 

These  changes  in  the  fundamental  law  of  so  many  of  our 
States  are  very  curious  and  interesting ;  they  show  the  facility 
with  which  our  institutions  lend  themselves  to  improvement, 
and,  at  the  same  time,  the  rapidity  with  which  a  regulation  or 
a  law  that  commends  itself  to  the  national  judgment  is  propa- 
gated from  one  member  of  the  confederacy  to  another,  thus 
keeping  in  harmony,  though  under  various  governments,  the 
general  organization  and  jurisprudence  of  the  component  parts 
of  the  empire. 

Titles  of  Laws. — Some  of  the  most  important  of  the  recent 
additions  to  our  constitutional  guaranties  are  to  be  found  in 
the  restrictions  imposed  on  what  may  be  called  the  practice 
and  procedure  of  our  legislative  bodies.  Great  abuses  have 
been  found  to  result  from  a  practice,  already  mentioned,  of  an- 
cient date,  of  incorporating  in  the  same  bill  subjects  of  a  very 
heterogeneous  nature,  resorted  to  either  for  the  purpose  of  sur- 
prising the  good  faith  of  the  lawmaking  body,  or  of  enlisting 
hostile  interests  in  support  of  the  proposed  act.**  To  put  a 

*  Constitution  of  Tennessee,  art.  xi,  §  4.  the  offenders  to  justice;  for  continuing  two 
f  Constitution  of  Indiana,  art.  iv,  §  22.  clauses,  to  prevent  the  cutting  or  breaking 
Constitution  of  Michigan,  art.  iv,  §  26.  down  the  bauk  of  any  river  or  sea  bank,  and 
Constitution  of  Louisiana,  art.  vi,  §  114.  to  prevent  the  malicious  cutting  of  hop-binds ; 
Constitution  of  Iowa,  art.  iv,  §  28.  and  for  the  more  effectual  punishment  of  per- 
**  Acts  of  this  kind  are  called,  in  the  coun-  sons  maliciously  setting  on  fire  any  mine,  pit, 
try  from  which  we  derive  most  of  both  our  or  delph  of  coal  or  cannel  coal ;  and  t>f  per- 
virtues  and  our  defects,  hodge-podge  acts,  sons  unlawfully  hunting  or  taking  any  red  or 
The  English  statute,  17  Geo.  II,  c.  40,  is  en-  fallow  deer  in  fores.^or  chafes,  or  beating  or 
titled  thus:  "  An  act  to  continue  the  several  wounding  the  keepers  or  other  officers  in 
laws  therein  mentioned,  for  preventing  theft  forests,  chafes,  or  parks ;  and  for  granting  a 
and  rapine  on  the  northern  borders  of  En-  liberty  to  carry  sugars  of  the  growth,  prod- 
gland;  for  the  more  effectual  punishing  uce,  or  manufacture  of  any  of  his  Majesty's 
wicked  and  evil  disposed  persons  going  around  sugar  colonies  in  America,  from  the  said 
in  disguise,  and  doing  injuries  and  violences  colonies  directly  to  foreign  ports  in  ships 
to  the  persons  and  properties  of  his  Majesty's  built  in  Great  Britain,  and  navigated  accord- 
subjects,  and  for  the  more  speedy  bringing  ing  to  law;  and  to  explain  two  ac:s  relating 


518  TITLES    OF   LAWS. 

stop  to  this  practice,  many  States  of  the  Union  have  incorpo- 
rated into  their  fundamental  laws  the  provisions,  some  of  which 
I  proceed  to  give.  («) 

to  the  prosecution  of  offenders  for  embezzling  ing,"  ordered  to  be  printed    13  May,  1Y96, 

naval  stores,  or  stores  of  war  ;  and  to  prevent  Parl.  Reg.  vol.  xliv,  p.  822.     The  report  con- 

the  retailing  of  wine  within  either  of  the  Uni-  taius  a  general  review  of  the  condition  of  the 

versities  in  that  part  of  Great  Britain  called  statute  law  of  the  kingdom,  and  severely  cen- 

Eng'and,  without  license."     I  take  this  from  sures  it  as  "  discordant,  perplexed,  incongru- 

a  very  interesting  "  Report  from  the  Commit-  ous,  verbose,  tautologous,  and  obscure."     See 

tee  upon  Temporary  Laws,  Expired  or  Expir-  also,  ante,  p.  51. 

(a)  Titles  and  Subjects  of  Statutes. — Constitutional  Provisions. — The  following  are 
all  the  constitutional  provisions  in  the  various  Slates : 

Each  law  shall  contain  but  one  subject,  which  shall  be  clearly  expressed  in  its 
title. — Alabama,  IV,  2 ;  Kansas,  II,  16.  No  bill  shall,  &c.  [same  as  above]. —  Ohio,  II, 
16;  Nebraska,  II,  19.  No  act  shall  embrace  more  than  one  subject,  which  shall  be 
embraced  in  its  title. — Arkansas,  V,  22 :  Minnesota,  IV,  27.  Laws  making  appro- 
priation for  the  salaries  of  public  officers  and  other  current  expenses  of  the  State 
shall  contain  provisions  on  no  other  subject. — Florida,  IV,  30;  Oregon,  IX,  7.  Each 
law  enacted  by  the  Legislature  shall  embrace  but  one  subject  and  matter  properly 
connected  therewith,  which  subject  shall  be  briefly  expressed  in  the  title. — Florida, 
IV,  14  ;  Nevada,  IV,  17.  Nor  shall  any  law  or  ordinance  pass  which  refers  to  more 
than  one  subject-matter,  or  contains  matter  different  from  what  is  expressed  in  the 
title  thereof. —  Georgia,  III,  9,  v.  No  act  hereafter  passed  shall  embrace  more  than 
one  subject,  and  that  shall  be  expressed  in  the  title.  But  if  any  subject  shall  be 
embraced  in  an  act  which  shall  not  be  expressed  in  the  title,  such  act  shall  be  void 
only  as  to  so  much  thereof  as  shall  not  be  so  expressed. — Illinois,  IV,  13 ;  Missouri, 
IV,  32.  Every  act  shall  embrace  but  one  subject  and  matters  properly  connected 
therewith,  which  subject  shall  be  expressed  in  the  title.  But  if  any  subject  shall  be 
embraced  in  an  act  which  shall  not  be  expressed  in  the  title,  such  act  shall  be  void 
only  as  to  so  much  thereof  as  shall  not  be  expressed  in  the  title. — Indiana,  IV,  19  ; 
Oregon,  IV,  20;  Iowa,  III,  29.  To  avoid  improper  influences  which  may  result  from 
intermixing  in  one  and  the  same  act  such  things  as  have  no  proper  relation  to  each 
other,  every  law  shall  embrace  but  one  subject,  and  that  shall  be  expressed  in  the 
title. — New  Jersey,  IV,  §  7,  4.  No  law  shall  embrace  more  than  one  object,  which 
shall  be  expressed  in  its  title. — Michigan,  IV,  20;  Virginia,  V,  15.  Every  law  shall 
express  its  object  or  objects  in  its  title. — Louisiana,  VI,  114.  No  law  enacted  by  the 
General  Assembly  shall  relate  to  more  than  one  subject,  and  that  shall  be  expressed 
in  the  title. — Kentucky,  II,  37.  Every  law  enacted  by  the  Legislature  shall  embrace 
but  one  object,  and  that  shall  be  expressed  in  the  title. —  California,  IV,  25  ;  Texas, 
XII,  17.  No  act  hereafter  passed  shall  embrace  more  than  one  object,  and  that  shall 
be  expressed  in  the  title.  But  if  any  object  shall  be  embraced  in  an  act  which  is 
not  so  expressed,  the  act  shall  be  void  only  as  to  so  much  thereof  as  shall  not  be  so 
expressed. —  WestVirgj,nia,YL,  30.  Every  law  enacted  by  the  General  Assembly  shall 
embrace  but  one  subject,  and  that  shall  be  described  in  its  title.—  Maryland,  ITT,  29. 
No  bill  shall  be  passed  by  the  Legislature  containing  more  than  one  subject,  which 
shall  be  expressed  in  the  title,  except  appropriation  bills. — Pennsylvania,  XI,  8. 
Every  act  or  resolution  having  the  force  of  law  shall  relate  to  but  one  subject,  and 
that  shall  be  expressed  in  the  title. — South  Carolina,  II,  20.  No  bill  shall  become  a 
law  which  embraces  more  than  one  subject,  that  subject  to  be  expressed  in  the  title. 


TITLES   OF   LAWS.  519 

The  evils  which  these  provisions  are  intended  to  prevent, 
are  well  stated  by  the  Supreme  Court  of  Louisiana.  "The 
title  of  an  act  often  afforded  no  clue  to  its  contents.  Important 
general  principles  were  found  placed  in  acts  private  or  local  in 
their  operations ;  provisions  concerning  matters  of  practice  or 
judicial  proceedings  were  sometimes  included  in  the  same  stat- 
ute with  matters  entirely  foreign  to  them;  the  result  of  which 
was,  that  on  many  important  subjects  the  statute  law  had  be- 
come almost  unintelligible,  as  they  whose  duty  it  has  been  to 
examine  or  act  under  it  can  well  testify.  To  prevent  any  further 
accumulation  to  this  chaotic  mass  was  the  object  of  the  consti- 
tutional provision  under  consideration.*  (a) 

*  Walker  v.  Caldwell,  4  Ann.  R.  298. 

—  Tennessee,  II,  17.  No  private  or  local  bill  which  may  be  passed  by  the  Legislature 
shall  embrace  more  than  one  subject,  and  that  shall  be  expressed  in  the  title. — New 
York,  III,  16 ;  Wisconsin,  IV,  14. 

(a)  Titles  and  Subjects  of  Statutes. — From  the  abstract  given  above  it  appears  that 
the  constitutional  provisions  respecting  titles  and  subjects  may  be  separated  into 
three  classes :  (1.)  In  most  of  the  States  the  provision  applies  to  all  statutes,  and 
requires  that  each  shall  relate  to  one  "  subject'1'1  only,  which  shall  be  expressed  in  the 
title.  (2.)  A  few — and  most  of  these  recent — Constitutions  have  the  same  require- 
ment, substituting  the  word  '•'•object1'1  for  "subject."  (3.)  Two  States  limit  the  re- 
quirement to  u  private  or  local "  statutes.  The  general  discussion  involves  the  ques- 
tions, what  is  a  single  "subject"  of  a  statute?  and  when  is  this  subject  properly 
expressed  in  the  title  ?  There  may  also  arise  the  question  whether  the  word  "  object," 
as  used  in  a  few  Constitutions,  has  any  different  meaning  from,  and  requires  any 
other  construction  than  the  word  "  subject."  As  yet  no  judicial  decision  has  pointed 
out  a  distinction.  There  does  not  seem  to  be  any  practical  difference.  The  word 
"  object"  rather  more  accurately,  perhaps,  fits  the  interpretation  which  the  courts 
have  given  to  the  clause  with  the  word  "  subject,"  and  probably,  for  this  reason,  has 
been  used  in  some  recent  Constitutions.  In  the  two  States,  New  York  and  Wiscon- 
sin, the  construction  of  the  clause  is  complicated  by  the  further  inquiry,  what  stat- 
utes are  local  or  private  ?  The  cases  from  these  particular  States  will,  therefore, 
necessarily  fall  into  a  group  by  themselves,  and  in  most  of  them  we  shall  find  that 
the  question  whether  the  statute  is  private  or  local  or  general  is  by  far  the  most  diffi- 
cult and  important. 

Within  the  past  few  years  this  clause  in  the  various  Constitutions  has  assumed  a 
very  considerable  importance,  and  the  number  of  decisions  giving  it  a  construction 
has  rapidly  increased.  This  fact  is  partly  due  to  the  great  increase  in  the  very 
kind  of  legislation  which  the  clause  was  intended  to  prevent,  and  partly  to  the 
growing  disposition  of  the  courts  to  treat  the  clause  as  meaning  something,  and  to 
regard  it  with  favor  as  a  beneficial  provision  well  calculated  to  restrain  corrupt  legis- 
lation. 

In  a  few  cases  the  clause  has  been  held  to  be  directory  merely,  a  rule  given  to  the 


520  TITLES    OF   LAWS. 

In  the  same  State,  it  has  been  said  to  be  improper  to  give 
this  provision  "  too  rigorous  and  technical  a  construction."     If 

Legislature,  but  without  sanction  or  penalty  ;  and,  as  a  consequence  of  this  interpre- 
tation, statutes  in  which  the  provision  is  violated  have  been  held  valid.  Pins  v. 
Nicholson,  6  Ohio,  N.  S.  176  ;  Washington  v.  Page.  4  Cal.  888;  Ex  parte  Newman,  9 
Cal.  502 ;  Pierpont  v.  Crouch,  10  Cal.  315.  But  these  cases  are  opposed  to  the  gene- 
ral current  of  judicial  decisions,  and  in  all  other  States  the  clause  is  pronounced  man- 
datory, and  a  violation  of  it  renders  the  statute  either  wholly  or  partly  void.  The 
cases  relating  to  this  provision  will  be  arranged  and  classified  under  the  following 
heads : 

The  Title,  when  does  it  sufficiently  express  the  Subject. — The  title  should  fairly  indi- 
cate the  general  subject  of  the  statute,  but  need  not  give  an  abstract  of  its  contents; 
nor  need  it  mention  the  means,  methods,  or  instruments  by  which  this  general  pur- 
pose is  to  be  accomplished ;  nor  need  it  express  matters  which  are  merely  incidental 
to  this  subject.  This  is  the  interpretation  which  has  almost  universally  been  put  upon 
the  constitutional  provision,  and  most  of  the  cases  hereafter  cited  are  illustrations  of 
the  interpretation.  San  Antonio  v.  Lane,  32  Tex.  405  ;  People  v.  Lawrence,  41  N.  Y. 
137;  36  Barb.  177.  But,  per  contra,  it  has  been  said  that  the  title  should  give  the 
means  rather  than  the  end,  and  should  be  reasonably  particular.  Indiana  Cent.  R.  R. 
v.  Potts,  7  Ind.  681.  But  this  is  opposed  to  the  general  rule.  The  adjuncts  and 
modus  operandi  need  not  be  stated.  An  act  to  authorize  "  the  erection  of  two 
bridges  "  is  sufficient.  Ottawa  v.  People,  48  111.  233.  The  following  cases  illustrate 
this  principle :  "  An  act  for  the  relief  of  I.  L.  &  Son,"  a  sufficient  title  where  the 
statute  authorizes  a  city  to  levy  an  assessment  on  a  portion  of  its  territory,  and  thus 
raise  a  certain  sum  and  pay  it  to  I.  L.  &  Son,  who  had  an  equitable  claim  against 
the  city  growing  out  of  a  contract.  Brewster  v.  Syracuse,  19  N.  Y.  116.  "  An  act 
for  a  homestead  exemption  "  is  a  sufficient  title,  though  it  includes  exemption  from 
personal  property.  Tuttle  v.  Strout,  7  Minn.  465.  It  has  been  held  that  the  title 
u  An  act  to  amend  "  a  certain  specified  act,  is  sufficient  when  the  title  of  the  original 
statute  was  proper,  and  the  amendatory  statute  contains  nothing  which  is  not  germane 
to  such  original.  Swartwout  v.  Mich.  Air  Line  R.  R.  24  Mich.  389  ;  Brandon  v.  State, 
16  Ind.  197.  But  where  an  act  was  entitled  an  act  to  amend  a  specified  chapter  of 
the  laws  of  a  certain  year,  and  such  chapter  was  in  fact  a  city  charter  containing  a 
great  number  of  sections  and  a  mass  of  details,  a  provision  in  it  changing  the  num- 
ber of  directors  of  a  railroad  to  which  the  city  was  entitled  was  held  void.  People 
v.  Hills,  35  N.  Y.  449,  reversing  s.  c.  46  Barb.  340.  "  An  act  to  authorize  the  gov- 
ernor to  till  vacancies  in  certain  county  offices  "  is  a  sufficient  title,  without  specify- 
ing what  offices.  Falconer  v.  Robinson,  46  Ala.  340. 

But  if  the  title  is  such  as  to  mislead,  it  is  bad,  e.g.,  where  an  act  only  affects  a 
particular  locality,  but  gives  no  notice  of  this  in  its  title.  Durkee  v.  Janesville,  26 
Wise.  6i>7.  And  when  the  object  of  a  local  statute  was  to  reduce  the  width  of  a 
highway,  and  to  give  back  some  of  the  land  to  the  abuttors,  and  its  title  was  "  An 
act  to  regulate  "  the  highway,  it  was  held  void.  People  v.  Commissioners,  53  Barb. 
70.  "  An  act  to  repeal  certain  acts  therein  named  "  cannot  include  any  affirmative 
legislation.  People  v.  Mellen,  32  111.  181.  But  if  the  title  does  not  mislead  or  effect 
a  surprise,  it  will  be  good,  although  not  the  most  apt  possible,  or  not  as  full  as  might 
be.  People  v.  McCallum,  1  Neb.  182 ;  Commonwealth  v.  Green,  58  Penn.  St.  226.  A 
mere  inaccuracy  in  the  title  will  not  defeat  the  act,  e.  g.,  in  a  statute  creating  a  new 


TITLES   OF  LAWS.  521 

in  applying  it  we  should  follow  the  rules  of  a  nice  and  fas- 
tidious verbal  criticism,  we  should  often  frustrate  the  action  of 

town,  describing  it  as  constituted  in  a  certain  township,  when  its  territory  wns  really 
formed  out  of  two  townships,  one  only  of  which  was  named.  State  v.  Elvins,  3 
Vroom,  362. 

When  there  is  One  Subject. — This  particular  question  has  two  aspects,  which  it  is 
important  to  distinguish  and  keep  separate  :  (1.)  The  title  may  express  more  than 
one  subject,  while  the  statute  really  embraces  but  one ;  and  (2.)  The  subject  may  be 
really  double.  Some  of  the  Constitutions  expressly  authorize  a  statute  to  contain 
"  matter  properly  connected  with  "  the  subject ;  but  this  provision  is  clearly  unneces- 
sary, for  without  it  the  same  result  is  reached.  The  matters  incidental  and  germane 
to  the  subject  are  included,  and  need  not  be  stated  in  the  title. 

Though  the  title  contains  more  than  is  necessary,  if  it  refer  to  the  one  subject- 
matter  of  the  statute  in  such  a  manner  as  to  properly  designate  it,  the  constitutional 
provision  is  not  violated.  Thus,  when  the  title  was  "  An  act  for  the  revising  and  con- 
solidating the  laws  incorporating  the  city  of  Dubuque,  and  to  establish  a  city  court 
therein,'11  the  statute  was  held  valid,  because  the  establishing  a  city  court  was  not  a 
new  subject,  but  was  a  mere  incident  to  the  general  subject  stated  in  the  title. 
Davis  v.  Woolnough,  9  Iowa,  104.  An  "  act  to  suppress  murder,  lynching,  and  as- 
saults and  batteries,"  deals  with  but  one  subject,  though  in  different  grades.  Gunter 
v.  Dale  Co.  44  Ala.  639.  See  also,  State  V.  Bowers,  14  Ind.  195;  Farley  v.  Dowe,  45 
Ala.  324;  Ex  part ~e  Upshur,  45  Ala.  234.  "  An  act  to  authorize  the  W.  &  S.  &  P.  R. 
R.  to  consolidate  with  the  M.  C.  R.  R.  and  to  bridge  the  Mississippi  River,"  held  to 
embrace  more  than  one  subject  (Miller,  J.,  dissenting).  Winona  &c.  R.  R.  v.  Wal- 
dron,  11  Minn.  515.  "An  act  for  the  organization  of  corporations  of  public  im- 
provement and  utility,"  held  to  embrace  but  one  object.  Bridgeford  v.  Hael,  18  La. 
Ann.  211. 

We  give  now  illustrations  arranged  under  various  heads,  according  to  the  general 
subject-matter  or  purpose  of  the  statute,  and  inquire,  What  provisions  are,  and  what 
are  not,  germane  to  the  general  subject  ?  When  all  the  provisions  of  a  statute  fairly 
relate  to  the  same  subject,  have  a  natural  connection  with  it,  are  the  incidents  or  the 
means  of  accomplishing  it,  then  the  subject  is  single,  and  if  it  is  sufficiently  expressed 
in  the  title,  the  statute  is  valid. 

Charters  of  Corporations. — What  provisions  may  be  inserted  in  such  charter,  and 
not  be  obnoxious  to  the  constitional  restriction  ?  The  charter  of  a  railroad  company 
may  contain  provisions  for  municipal  subscriptions  in  aid  of  it.  Supervisors  v.  People, 
25  111.  181 ;  Phillips  v.  Covington  Bridge  Co.  2  Mete.  (Ky.)  219 ;  Phillips  v.  Albany, 
28  Wise.  340 ;  per  contra,  San  Antonio  v.  Gould,  34  Tex.  49.  "  An  act  for  the  bene- 
fit of  the  L.  &  O.  Turnpike  Co."  embraced  provisions  authorizing  the  company  to 
borrow  on  mortgage,  and  authorizing  also  a  sale  of  the  road  to  pay  debts  and  a  sub- 
stitution of  the  purchaser  to  the  rights  of  the  company,  and  was  held  valid.  Louis- 
ville &c.  Co.  v.  Ballard,  2  Mete.  (Ky.)  165.  But  in  "  An  act  to  incorporate  an  ob- 
servatory," provisions  requiring  the  comproller  of  the  State  to  loan  money  to  the 
corporation  out  of  a  public  fund,  upon  very  inadequate  security,  were  held  void. 
People  v.  Allen,  42  N.  Y.404.  In  an  act  chartering  a  college,  a  provision  forbidding 
the  sale  of  liquors  within  four  miles  thereof  was  held  germane  to  the  subject  and 
valid.  O'Leary  v.  County  of  Cook,  28  111.  534.  A  clause  in  a  bank  charter  allowing 
all  parties  on  any  bill  negotiated  at  the  bank  to  be  sued  in  one  action  is  also  germane 


622  TITLES    OF   LAWS. 

the  Legislature,  without  fulfilling  the  intention  of  the  framers 
of  the  Constitution  ;  and  so  it  has  been  said  that  an  act  enti- 


to  the  subject  and  valid.  Davis  v.  Bank  of  Fulton,  31  Geo.  69.  "  An  act  for  the  in- 
corporation of  insurance  companies,  denning  their  powers  and  prescribing  their 
duties,"  cannot  properly  embrace  provisions  regulating  agencies  of  foreign  com- 
panies. Igoa  v.  State,  14  Ind.  239;  Grubbs  v.  State,  24  Ind.  295.  But  "  An  act  to 
incorporate  the  Fireman's  Benevolent  Association,"  may  include  provisions  for  a  tax 
on  incomes  of  foreign  insurance  companies  doing  business  at  the  place  for  the  bene- 
fit of  such  corporation.  Fireman's  Ass.  v.  Louusbury,  21  111.  511.  It  seems  that  an 
act  by  its  title  merely  for  the  extension  of  a  charter,  may  state  the  terms  upon  which 
the  extension  is  granted.  Robinson  v.  Bank  of  Darien,  18  Geo.  65. 

Municipal  Corporations. — The  following  cases  relate  to  the  charters  of  municipal 
corporations,  and  to  statutes  which  relate  to  the  internal  affairs,  government,  and 
acts  of  such  corporations,  including  in  part  the  power  of  taxing  held  by  such 
bodies : 

It  is  a  general  rule  that  the  general  object  of  the  act  is  to  be  stated  in  the  title, 
and  not  the  means  and  methods  by  which  it  is  to  be  accomplished,  and  not  the  inci- 
dents and  details.  People  v.  Mahany,  13  Mich.  495  ;  Mayor  &c.  v.  State,  30  Md.  112; 
State  v.  Union,  33  N.  J.  354.  And  all  the  following  cases  either  imply  or  expressly 
state  the  same  principles : 

The  title  of  an  act  was  to  amend  the  charter  of  a  city,  and  the  body  of  the  stat- 
ute provided  for  a  new  assessment  for  certain  city  improvements,  gave  new  power  to 
the  city  council  to  lay  out  streets,  &c.,  and  fixed  the  time  for  delivery  of  the  tax  lists. 
It  was  held  valid.  State  v.  Newark,  5  Vroom,  236.  "  An  act  to  amend  the  charter 
of "  a  city  may,  it  seems,  include  provisions  that  aldermen  shall  not  as  theretofore 
sit  as  members  of  a  certain  court,  that  the  remaining  members  of  such  court  shall 
transact  its  business,  and  for  the  punishment  of  city  functionaries  for  bribery. 
Phillips  v.  New  York,  1  Hilt.  (N.  Y.  C.  P.)  483.  "  An  act  to  amend  the  act  to 
incorporate  "  a  city  was  held  to  properly  embrace  a  provision  for  extending  the 
city  limits.  Morford  v.  linger,  8  Clarke  (la.)  82;  and  see  also  Whiting  v.  Mt. 
Pleasant,  11  Iowa,  482.  "An  act  to  extend  the  corporate  powers  of  the  town  of 
Pontiac,"  properly  contains  clauses  restricting  as  well  as  those  enlarging  such  powers, 
e.  g.,  as  to  licensing  liquor  traffic.  Neifing  v.  Pontiac,  56  111.  172.  An  act  to  change 
the  boundaries  of  two  counties  may,  as  incident  to  such  end,  apportion  the  county 
debt.  Humboldt  Co.  v.  Churchill  Co.  Comm'rs,  6  Nev.  30.  An  act  for  the  enlarging  of 
a  county  may  provide  for  re-locating  the  county  seat,  for  accepting  donations  of  sites 
therefor,  &c.  Blood  v.  Mercelliott,  53  Penn.  St.  391.  "An  act  to  extend  the  bound- 
aries of  Kossuth  county,"  was  held  to  properly  include  the  joining  to  another  county 
of  the  remnant  of  the  county  from  which  the  addition  was  taken,  which  remnant 
was  less  than  the  area  required  by  the  Constitution  for  a  separate  county,  inasmuch  as 
this  was  necessary  to  the  accomplishment  of  the  general  purpose  of  the  act,  since  other- 
wise a  county  of  less  than  the  required  area  would  have  been  left.  Duncombe  v. 
Prindle,  12  Iowa,  1.  Provisions  for  forming  new  counties  out  of  old  ones  and  for 
changing  the  boundaries  of  the  old  ones,  are  properly  joined  in  one  statute.  Hag- 
gard v.  Hawkins,  14  Ind.  299.  And  in  acts  for  the  "formation  "  of  new  counties, 
provisions  as  to  the  sessions  of  courts  therein  are  proper.  Brandon  v.  State,  16  Ind. 
197.  But  in  "  An  act  locating  the  county  seat  of  Calhouu  county,"  a  provision  for 
the  sale  of  county  property  at  the  old  county  seat  relates  to  a  different  subject  from 


TITLES  OF  LAWS.  523 

tied  an  act  to  "provide  a  Iwniestead  for  widows  and  children" 
was  good,  though  in  fact  the  statute  only  prov ided  the  pecuniary 

that  expressed  in  the  title,  and  was  void.  Cutlip  v.  Calhoun  Co.  3  W.  Va.  588.  An 
act  to  establish  "  township  organizations,"  provided  also  for  aggregation  of  towns 
into  counties,  it  was  held  not  to  be  within  the  spirit  of  the  constitutional  prohibi- 
tion, although  technically  embracing  two  subjects.  Supervisors  v.  Heenan,  2  Minn. 
380.  And  an  'cact  for  the  more  uniform  mode  of  doing  township  business"  may 
include  provisions  for  the  organization  of  townships.  Clinton  v.  Draper,  14  Ind. 
295. 

"  An  act  to  enable  the  supervisors  of  the  city  and  county  of  New  York  to  raise 
money  by  tax,"  properly  embraced  a  provision  for  the  re-examination  and  reversing 
of  judgments  againpt  the  city  obtained  by  fraud,  these  judgments  being  payable  out 
of  the  money  thus  raised  by  the  tax,  an  examination  into  their  validity  was  in  fact 
a  means  of  fixing  the  amount  of  indebtedness  to  be  paid,  and  this  was  an  incident 
of  the  general  purpose  of  the  statute.  Sharp  v.  New  York,  31  Barb.  572  ;  Joyce  v. 
Mayor  &c.  12  Abb.  Pr.  309.  In  this  and  all  the  other  New  York  cases  cited,  it  must 
be  remembered,  the  statute  itself  is  local  or  private  if  it  falls  within  the  constitu- 
tional prohibition.  "  An  act  to  make  provision  for  the  government  of  the  county 
of  New  York,"  may  prescribe  rules  as  to  county  taxation,  the  property  to  be  taxed, 
and  may  repeal  exemptions.  People  v.  Comm'rs  of  Taxes,  47  N.  Y.  501.  u  An  act 
to  enable  the  supervisors  of  the  city  and  county  of  New  York  to  raise  money  by  tax 
for  the  use  of  the  corporation,  and  in  relation  to  the  expenditure  thereof."  Section 
10  enacted  that  the  city  shall  not  be  liable  upon  any  contract  made  by  any  board  or 
officer  of  the  city  not  authorized  by  such  act;  this  provision  was  held  invalid,  as 
being  local  it  was  not  expressed  in  the  title.  Smith  v.  Mayor  &c.  7  Robt.  190. 

"  An  act  to  enable  the  supervisors  of  the  city  and  county  of  New  York  to  raise 
money  by  tax  for  the  use  of  the  corporation,  and  in  relation  to  the  expenditure 
thereof,  and  to  provide  for  the  auditing,  &c.,  of  claims  against  said  city,"  cannot 
contain  provisions  as  to  the  term  of  office  and  time  of  election  of  city  conncilmen  ; 
such  provisions  are  local  and  not  expressed  iu  the  title.  People  v.  O'Brien,  38  N.  Y. 
193. 

In  an  act  relating  to  the  collection,  payment,  and  application  of  certain  assess- 
ments in  a  designated  city,  a  provision  for  making  compensation  by  means  of  such 
assessments  to  a  railroad  company  for  its  discontinuing  the  use  of  steam  in  the  city, 
is  valid.  Also  in  an  act  for  the  purpose  of  closing  a  tunnel,  restoring  the  street,  and 
terminating  the  use  of  steam  by  a  certain  railroad  in  a  city,  a  clause  authorizing  the 
company  to  maintain  a  horse  railroad  in  the  place  of  their  former  one,  and  for  assess- 
ments to  compensate  it  for  the  change,  is  valid.  These  provisions  are  incidental,  and 
means  to  accomplish  the  object  expressed  by  the  title.  People  v.  Lawrence,  41  N.  Y. 
123;  s.  c.  36  Barb.  177.  "  An  act  in  relation  to  the  fees  of  certain  officers  in  the  city 
and  county  of  New  York ''  sufficiently  designates  the  subject  of  a  local  statute  which 
gives  salaries  instead  of  fees,  and  provides  that  the  fees  should  go  into  the  city 
treasury.  Conner  v.  Mayor  &c.  5  N.  Y.  285.  "  An  act  to  enable  the  supervisors  of 
the  city  and  county  of  New  York  to  raise  money  by  tax  "  is  a  sufficient  title  of  a 
local  statute  which  authorizes  a  tax  on  the  city,  and  directs  a  portion  of  the  tax  for 
specified  purposes  to  be  .assessed  on  a  particular  part  of  the  city.  It  was  held  that 
this  statute  related  to  but  one  subject — the  power  to  tax — and  that  the  mode  of  exer- 
cising this  power,  and  the  purposes  for  which  the  money  was  to  be  raised,  need  not 


524  TITLES    OF   LAWS. 

means  sufficient  to  purchase  a  homestead*  In  the  State  of 
Maryland,  it  has  been  said  that  the  provision  that  "  every  law 

*  Succession  of  Lanzetti,  9  La.  Ann.  329.     See,  also,  Lsefon  v.  Dufrocq,  Ibid.  540. 

be  expressed.  Sun  Mutual  Ins.  Co.  v.  Mayor  &c.  8  N.  T.  241 ;  s.  c.  5  Sandf.  10.  An 
act  to  consolidate  several  school  districts  in  a  certain  village,  and  to  establish  a  free 
school  therein,  does  not  embrace  more  than  one  subject.  People  v.  Bennett,  54  Barb. 
480.  "An  act  in  relation  to  the  establishment  of  a  normal  and  training  school  in 
the  village  of  B."  contained  provisions  for  raising  money  for  the  school  by  the  issu- 
ing of  village  bonds  or  by  a  village  tax ;  these  provisions  were  held  germane  to  the 
subject  and  valid.  Gordon  v.  Comes,  47  1ST.  Y.  608.  In  an  act  relating  to  con- 
tracts made  by  the  city  of  New  York,  a  clause  constituting  certain  officers  a  board 
of  revision  for  the  correction  of  assessments  was  held  valid,  the  object  being  for  the 
confirmation  of  assessments  by  which  compensation  was  to  be  made  to  contractors. 
Matter  of  Tappen,  36  How.  Pr.  390 ;  54  Barb.  225.  "  An  act  to  make  further  pro- 
vision for  the  government  of  the  city  of  New  York,""  which  was  in  fact  the  annual 
tax  levy  for  the  city,  contained  a  provision  for  the  reorganization  of  the  courts  of 
special  sessions  in  the  city ;  this  provision  was  held  void,  the  court  saying  that  both 
the  act,  in  its  general  subject  and  in  its  separate  clauses,  and  this  particular  provis- 
ion, were  local  in  their  character,  and  that  the  title  did  not  embrace  this  provision. 
Huber  v.  People,  49  N.  Y.  132.  But  in  an  act  of  the  same  title  and  character,  a  sec- 
tion forbidding  judgments  to  be  entered  against  the  city,  except  on  a  verdict  of  a 
jury  or  on  issues  of  law,  was  held  valid  by  the  Supreme  Court,  on  the  ground  that 
it  was  general  in  its  character,  though  the  mass  of  the  statute  was  local.  Lewenthal 
v.  Mayor.  61  Barb.  511.  This  case,  however,  must  be  considered  as  overruled  by  Huber 
v.  People,  uhi  supra.  "  An  act  in  relation  to  certain  local  improvements  in  the  city 
of  New  York,"  contained  the  following  provisions  :  that  certain  contracts  for  im- 
provements should  be  invalid  if  certain  irregularities  have  occurred,  unless  commis- 
sioners appointed  by  the  act  shall  certify  that  no  fraud  has  been  committed  in 
respect  to  them;  that  commissioners  be  appointed  to  examine  into  such  contracts, 
&c. ;  that  the  contracts  certified  to  be  free  from  fraud  should  be  paid  ;  for  the  issue 
of  "  assessment  bonds  "  to  raise  money  for  purposes  of  such  payment ;  that  no  assess- 
ment for  improvement  should  be  set  aside  for  irregularity  unless  fraud  was  shown, 
&c.  This  statute  was  held  to  be  local,  and  to  embrace  but  one  subject,  and  to  prop- 
erly express  that  subject  in  the  title.  The  court  said  :  "A  subject  is  that  of  which 
anything  may  be  affirmed  or  predicated,  and  if  the  various  parts  of  this  act  have 
respect  to  or  relate  to  local  improvements,  the  act  is  not  obnoxious  to  the  constitu- 
tional objection  interposed,  and  the  degree  of  relationship,  if  it  legitimately  tends 
to  the  accomplishment  of  the  general  purpose,  is  immaterial.  The  general  subject 
of  local  improvements  includes  their  plan  and  construction  not  only,  but  the  means 
by  which  the  work  is  accomplished,  and  the  proceedings  necessary  to  be  adopted 
for  these  purposes,  for  assessing  and  paying  the  expenses  incurred,  as  well  as  the 
remedies  to  parties  for  redress  of  grievances  growing  out  of  their  construction.  A 
general  title  relating  to  local  improvements  would  be  understood  to  include,  or  at 
least  that  it  might  include,  these  several  details."  Matter  of  Mayer,  50  N.  Y.  504. 
"  An  act  in  relation  to  the  erection  of  public  buildings  for  the  use  of  the  city  of 
Rochester  "  contained  a  provision  that  commissioners  appointed  therein  to  build  a 
city  hall  should  select  a  site  for  the  building,  This  clause  was  held  to  be  valid,  as 
the  selection  of  a  site  was  an  incident  of  the  general  subject  of  the  statute.  People 


TITLES   OF  LAWS.  525 

enacted  by  the  Legislature  shall  embrace  but  one  subject,  and 
that  shall  be  designated  by  the  title,"  was  to  prevent  grafting 


ex  rel.  Hayden  v.  Rochester,  50  N.  Y.  525.  The  whole  scope  of  the  constitutional 
prohibition  was  carefully  examined,  and  stated  by  the  New  York  Court  of  Appeals, 
in  a  very  recent  case.  An  act  entitled  "An  act  to  amend  the  several  acts  in  relation 
to  the  city  of  Rochester,"  contained  among  others  the  following  provisions:  in  rela- 
tion to  collection  of  taxes,  &c. ;  appointing  a  board  of  public  works,  defining  their 
duties,  &c.,  and  giving  them  power  over  streets,  sewers,  and  all  other  public  works 
of  the  city  with  certain  exceptions  ;  authorizing  the  tracks  of  a  street  railroad  to  be 
relaid  on  each  side  of  a  certain  avenue ;  certain  provisions  relating  to  the  water  com- 
missioners of  the  city  and  the  water  works,  and  among  these  one  authorizing  such 
commissioners  to  lay  the  pipes  through  towns  and  villages  on  the  route  from  the 
water  supply  to  the  city,  and  to  acquire  a  right  of  way  therefor,  and  also  to  contract 
with  the  trustees  of  any  village  through  which  the  water  mains  passed  for  the  supply 
of  such  village  with  water,  and  in  such  case  authorizing  the  village  authorities  to 
levy  and  collect  the  annual  expense  of  such  supply  by  an  annual  tax  of  the  village. 
The  court  held  that  the  title  "  expresses  a  subject  comprehensive  enough  to  embrace 
all  the  details  of  a  city  charter,"  and  distinguished  it  from  the  title  in  People  v.  Hills, 
35  N.  Y.  449 ;  and  that  all  the  provisions  of  the  statute  were  within  the  title,  being 
legitimate  details  and  matters  of  the  city  government.  Grover,  Folger,  and  Peckham, 
JJ.,  dissented.  City  of  Rochester  v.  Briggs,  50  N.  Y.  553. 

'  Taxation. — "  An  act  to  provide  for  the  general  valuation  and  assessment  of  prop- 
erty in  this  State"  covers  a  repealing  clause  of  exemptions  of  specified  corporations 
from  taxation.  County  Comm'rs  v.  Franklin  R.  R.  34  Md.  159,  An  act  "  providing 
for  the  election  or  appointment  of  supervisors  of  highways,  and  prescribing  certain 
of  their  duties  and  those  of  county  and  township  officers  in  relation  thereto,"  relates 
to  the  subject  of  highways — the  relation  of  specified  officers  thereto — and  a  provision 
for  the  levy  of  a  road  tax  is  germane.  Bright  v.  McCullough,  27  Ind.  223.  See  also 
cases  under  last  preceding  subdivision. 

Administration  of  Justice. — "  An  act  providing  for  the  election  and  qualification 
of  justices  of  the  peace  and  defining  their  jurisdiction,  powers,  and  duties  in  civil 
actions,"  may  properly  include  a  provision  regulating  the  manner  in  which  appellate 
courts  shall  render  judgment  for  costs  on  appeal  from  justices  of  the  peace.  Robin- 
son v.  Skipworth,  23  Ind.  311,  overruling  Kuhns  v.  Krammis,  20  Ind.  490.  "An  act 
to  simplify  and  abridge  the  rules,  practice,  pleadings,  and  forms  in  civil  cases  in  the 
courts  of  this  State,  to  abolish  distinct  forms  of  action  at  law,  and  to  provide  for  the 
administration  of  justice  in  a  uniform  mode  of  pleading  and  practice,  without  dis- 
tinction between  law  and  equity ;  "  held  that  a  provision  giving  mechanics  a  lien  is 
germane  to  the  'subject  expressed  in  this  title.  Hall  v.  Bunte,  20  Ind.  304.  "  An  act 
relative  to  slaves  "  was  held  to  embrace  but  one  subject,  although  it  treated  of  crimes 
by  slaVes,  their  punishment,  compensation  to  masters,  duties  of  justices,  attendance 
of  witnesses,  &c.,  the  general  scope  being  one,  and  fairly  irdicated  by  the  title.  State 
v.  Henry,  15  La.  Ann.  297.  '•  An  act  for  the  suppression  of  intemperance  "  may  in- 
clude the  methods  of  suppression,  such  as  forfeiture,  appointment  of  agents,  &c. 
Santo  v.  State,  2  Clarke  (la.)  165  ;  Parkinson  v.  State,  14  Md.  184.  An  act  creating 
an  insurance  department  may  contain  sections  for  the  punishing  criminally  a  breach 
of  its  provisions.  State  v.  Mathews,  44  Mo.  523.  In  a  "  Code  of  Civil  Practice," 
under  the  head  "  Executions,"  were  provisions  stating  the  duty  of  officers  of  cor- 


526  TITLES   OF    LAWS. 

upon  subjects  of  great  public  benefit  and  importance  foreign 
and  pecuniary  matters  for  local  and  selfish  purposes.  * 

*  Davis  v.  The  State.  Court  of  Appeals,  7     which  shall  be  expressed  in  the  title,  see  Bat- 
Maryland,  151.     In  Texas,  as  to  the  provision     tie  v.  Howard,  13  Texas,  345. 
tli at  every  law  must  embrace  but  one  object, 

porations  as  to  the  payment  of  executions  against  such  corporations,  and  declaring 
the  consequences  to  such  officers  for  a  failure  in  this  duty.  These  provisions  were  held 
properly  embraced  under  the  title.  Porter  v.  Thomson,  22  Iowa,  391.  "  An  act  for 
the  protection  of  Itona  fide  purchasers  for  a  valuable  consideration"  may  repeal  as 
many  laws  as  are  necessary  to  that  end.  Martin  v.  Hewett,  44  Ala.  418.  An  act 
regulating  the  "  revocation,  admission  to  probate,  and  contest  of  wills,"  properly  in- 
cludes provisions  as  to  appeal  in  such  cases.  Henry  v.  Henry,  13  Ind.  250.  "An 
act  relative  to  the  payment  of  expenses  incident  to  the  prosecution  of  criminals" 
will  not  cover  a  provision  for  the  payment  of  fines  into  the  State  treasury.  Parish 
of  Bossier  v.  Steele,  13  La.  Ann.  433.  An  act  in  its  title  related  only  to  notes  and 
bills  of  exchange,  a  provision  contained  in  it  respecting  other  written  instruments 
was  held  void.  Mewherter  v.  Price,  11  Ind.  199.  An  act  does  not  embrace  more 
than  one  subject  because  it  contains  criminal  as  well  as  civil  provisions ;  and  an  act 
for  regulating  the  "  sale  "  of  liquors  may  prohibit  the  "  giving  "  of  liquors  to  minors. 
Thomasson  v.  State,  15  Ind.  449;  see,  also,  Reams  v.  State,  23  Ind.  Ill ;  Hingle  v. 
State,  24  Ind.  28,  reaffirming  Thomasson  v.  State,  ubi  supra,  and  overruling  Laner  v. 
State,  22  Ind.  461. 

Amendatory  Statutes. — If  the  amendment  is  not  foreign  to  the  title  of  the  original 
statute,  it  mates  no  difference  whether  it  is  cognate  to  the  section  amended.  Under- 
wood v.  McDuffie,  15  Mich.  361.  "  An  act  amendatory  to  and  explanatory  of  the 
statute  of  limitations  in  this  State,  passed  the  7th  of  Dec.,  1805,  so  far  as  it  regards 
idiots,  lunatics,  and  infants,"  contained  a  section  relative  to  idiots,  lunatics,  and 
infants,  and  one  relative  to  non-residents,  both  were  held  valid  as  within  the  title. 
Denham  v.  Holeman,  26  Geo.  182.  "An  act  to  amend  §  11  of  an  act  to  establish 
courts  of  common  pleas,  so  as  to  extend  the  jurisdiction  of  said  courts  in  certain 
cases,"  amended  §  11,  which  related  solely  to  civil  suits,  and  also  added  a  section 
giving  jurisdiction  in  criminal  cases;  the  whole  was  held  valid,  the  original  act 
relating  in  other  sections  to  criminal  matters.  Reed  v.  State,  12  Ind.  641.  But 
where  the  second  section  of  a  statute  of  limitations  related  solely  to  limitations  of 
actions  respecting  real  estate,  a  statute  purporting  by  its  title  to  be  amendatory 
merely  of  that  section,  but  which  in  fact  made  all  the  provisions  of  the  original  act 
retrospective,  was  held  invalid.  Chiles  v.  Munroe,  4  Mete.  (Ky.)  72.  "  An  act  con- 
cerning licenses  to  vend  foreign  merchandise,  to  exhibit  any  caravan,  menagerie, 
circus,  rooe  and  wire  dancing,  puppet  show,  and  legerdemain,"  embraces  only  one 
subject,  namely  licenses,  but  as  it  specifies  what  licenses,  an  act  by  its  title  merely 
amendatory  thereof  cannot  introduce  a  license  on  concerts,  since  that  would  not  be 
germane  to  the  subject  as  limited  in  the  title  of  the  original  act.  State  v.  Bovvers, 
14  Ind.  195.  An  act  of  1841  authorized  a  city  to  raise  money  by  a  tax  of  residents, 
and  by  its  title  was  limited  to  residents ;  in  1847,  an  act  was  passed  "  to  amend  the 
act  of  1841,"  and  recited  its  title;  a  provision  of  it  imposing  a  tax  on  the  property 
of  non-residents  was  held  valid.  Jones  v.  Columbus,  25  Geo.  610.  It  seems  "  an 
act  te  amend  "  a  certain  other  act  is  a  sufficient  title  to  cover  anything  germane  to 
the  original  statute.  Swartwout  v.  Mich.  Air  Line  R.  R.  24  Mich.  389.  And  if  the 


TITLES    OF   LAWS.  527 

In  California,  much  less  importance  has  been  attached  to 
the  provision,  the  court  saying,  "  We  regard  this  section  of  the 

title  of  the  original  act  be  sufficient,  it  is  unnecessary  to  inquire  whether  the  title  of 
the  amendatory  act  would  itself  be  sufficient.  Brandon  v.  State,  16  Ind.  197.  But 
it  was  held  in  New  York,  that  ''An  act  to  amenl  chap.  389  of  the  laws  of  1851," 
did  not  cover  an  amendment  of  a  particular  section  of  the  original  act  which  was  a 
city  charter.  People  v.  Hills,  35  N.  Y.  449.  But  see  this  case  explained  in  Rochester 
v.  Briggs,  50  N.  Y.  553,  where  the  court  say  that  the  title  in  People  v.  Hills  did  not 
express  any  subject,  and  that  a  title  "  An  act  to  amend  the  several  acts  in  relation  to 
the  city  of  Rochester,"  means  in  relation  to  the  charter  of  the  city  of  Rochester,  and 
is  broad  enough  and  accurate  enough  to  embrace  all  the  details  of  a  city  government, 
three  judges  however  dissenting. 

Miscellaneous. — "  An  act  fixing  the  time  and  mode  of  electing  a  State  printer, 
denning  his  duties,  fixing  compensation,  and  repealing  all  laws  in  conflict  with  this 
act,"  provisions  applicable  to  the  existing  incumbent  of  the  office  were  held  germane 
to  the  title  and  incident  to  the  one  subject.  Walker  v.  Dunham,  17  Ind.  483.  An 
act  for  the  separation  of  two  offices,  giving  power  of  removal,  and  repealing  incon- 
sistent acts,  embraces  but  one  subject.  State  v.  Commonwealth,  8  Bush  (Ky.)  108. 
An  "  act  to  prevent  domestic  animals  running  at  large  in  the  counties  of  Munroe, 
St.  Clair,  and  other  counties,"  contained  a  provision  by  which  its  terms  might  be 
accepted  by  a  subdivision  of  a  county,  while  they  were  rejected  by  the  county  at 
large,  and  also  aprovision  adopting  the  mode  of  proceeding  established  in  the  estray 
laws ;  the  statute  was  held  to  embrace  a  single  subject,  and  to  properly  express  it  in 
the  title.  Erlinger  v.  Boneau,  51  HI.  94.  An  act  entitled  "  AD  act  to  release  the 
Fishkill,  &c.  Plank-road  Co.  from  the  construction  of  a  part  of  their  road,  and  for 
other  purposes,"  contained  clauses  respecting  the  abandonment  of  a  part  of  the  road 
already  constructed,  the  relaying  the  road  with  gravel,  the  infliction  of  penalties  for 
running  the  toll  gates,  and  legalizing  certain  previous  acts  of  the  corporation.  The  stat- 
ute being  local,  these  provisions  were  held  not  to  be  germane  to  the  subject  expressed 
in  the  title.  Fishkill  v.  Fishkill  &c.  P.  R.  Co.  22  Barb  634.  An  act  for  the  com- 
pensation of  injuries  from  the  negligence  of  "  railroad  companies  or  others,"  and  in  its 
provisions  applying  both  to  individuals  and  to  corporations,  was  held  valid,  in  Chiles 
v.  Drake,  2  Mete.  (Ky.)  146.  When  a  statute  repeals  former  laws  on  the  same  subject, 
there  need  be  no  reference  to  such  repealing  clause  in  the  title.  Gabbert  v.  Jefferson- 
villeR.  R.  11  Ind.  365;  Branham  v.  Lange,  16  Ind.  497;  Guilford  v.  Cornell,  18 
Barb.  640.  The  divisions  and  classifications  of  a  statute  are  not  parts  of  the  title, 
and  the  placing  a  provision  under  a  wrong  head  does  not  invalidate  the  statute 
nor  the  provision,  if  the  latter  is  germane  to  the  subject  expressed  in  the  title.  Rob- 
inson v.  State,  15  Tex.  311 ;  per  contra,  see  Gillespie  v.  State,  9  Ind.  380.  An  act 
entitled  "An  act  to  repeal  certain  acts  therein  named  "  is  void.  People  v.  Mellen,  32 
111.  181.  "An  act  for  the  preservation  of  Muskegon  river  improvement"  it  was  held 
could  not  provide  for  the  collection  of  tolls  to  pay  for  the  construction  of  the  im- 
provement. Ryerson  v.  Utley,  16  Mich.  269.  "An  act  to  regulate  proceedings  in 
county  courts,"  may  contain  clauses  relating  to  appeals  to  the  district  court  and 
regulating  proceedings  on  such  appeals.  Murphy  v.  Menard,  11  Tex.  673.  "  An  act 
to  limit  the  number  of  grand  jurors,  and  to  point  out  the  mode  of  their  selection, 
defining  their  jurisdiction,  and  repealing  all  laws,  &c.,"  cannot  properly  contain  a 


528  TITLES   OF   LAWS. 

Constitution  as  merely  directory ;  and  if  we  were  inclined  to  a 
different  opinion,  would  be  careful  how  we  lent  ourselves  to  a 

provision  that  a  criminal  on  trial  for  any  offence  may  be  found  guilty  of  a  lesser 
offence  of  the  same  nature.  Foley  v.  State,  9  Ind.  863. 

The  phrase  "  and  for  other  purposes,"  often  placed  at  the  close  of  titles,  has  no 
legal  significance,  and  does  not  warrant  any  provisions  in  the  statute.  Fishkill  v. 
Fishkill  &c.  PI.  R.  Co.  22  Barb.  642 ;  Ryerson  v.  Utley,  16  Mich.  269  ;  St.  Louis  v. 
Teifel,  42  Mo.  578. 

Effect  of  Nonconformity  with  the  Constitutional  Requirement. — If  a  statute  should 
actually  embrace  two  different  subjects,  and  both  subjects  were  expressed  in  the 
title,  the  whole  would  clearly  be  void,  for  the  court  could  not  distinguish  between 
the  two  subjects,  and  say  that  one  should  stand  and  the  other  be  disregarded.  In 
Cutlip  v.  Sheriff  &c.  3  W.  Va.  588,  the  court  held  that  if  an  act  contains  two 
subjects,  and  only  one  of  them  is  properly  expressed  in  the  title,  the  whole  is  void. 
This  decision,  however,  is  contrary  to  the  weight  of  authority,  and  is  clearly  wrong. 

Where  the  statute  is  broader  than  the  title,  that  is,  where  it  contains  matter  which 
is  not  within  the  subject  expressed  in  the  title,  several  of  the  State  Constitutions 
expressly  declare  that  it  is  void  only  as  to  such  excess.  Such,  also,  is  the  settled 
interpretation  of  the  clause  without  this  provision.  If  the  clauses  which  do  not 
belong  to  the  subject  of  the  statute  as  stated  in  the  title,  are  separable  from  the  rest 
of  the  act,  they  alone  are  invalid,  and  the  remaining  portion  stands.  The  cases 
cited  above  illustrate  this  rule,  and,  upon  examination,  it  will  be  found  that  in  very 
many  of  them  parts  of  the  statute  only  were  rejected,  and  parts  were  sustained. 
Fishkill  v.  Plank-road  Co.  22  Barb.  642 ;  People  v.  O'Brien,  38  N.  T.  193;  Davis  v. 
State,  7  Md.  151.  This  doctrine  was  asserted  by  the  Court  of  Appeals  of  New  York, 
in  the  recent  case  of  City  of  Rochester  v.  Briggs,  already  cited.  In  speaking  of  the 
sections  of  the  act  under  consideration,  which  related  to  a  water  supply  for  villages, 
and  a  village  tax  to  defray  the  expense  thereof,  uli  supra,  the  court  said :  "  But 
there  is  another  answer  to  this  objection  as  affecting  this  case.  If  the  village  clause 
should  be  construed  as  another  subject,  it  would  be  invalid,  but  would  not  affect 
other  parts  of  the  law  in  no  way  connected  with  it,  the  subject  of  which  is  prop- 
erly expressed  in  the  title.  The  Constitution  declares  that  every  local  or  private 
bill  shall  contain  but  one  subject  to  be  expressed  in  the  title,  but  does  not  expressly, 
nor  by  fair  intendment,  declare  that  provisions  the  subject  of  which  is  expressed 
shall  be  void.  That  the  valid  part  should  be  upheld  is  not  only  in  accordance  with 
elementary  principles,  but  is  sustained  by  authority.  It  is  a  universal  rule  that 
where  a  part  of  a  statute  is  unconstitutional,  that  fact  does  not  authorize  the  courts 
to  declare  the  remainder  void,  unless  the  provisions  are  so  connected  together  in 
subject-matter,  meaning,  or  purpose,  that  it  cannot  be  presumed  the  Legislature 
would  have  passed  the  one  without  the  other.  And  this  rule  applies  as  well  where 
the  forms  observed  are  sufficient  for  some  parts  of  the  act,  but  not  for  others,  as  where 
a  part  of  the  act  is  constitutionally  invalid  for  any  other  reason."  City  of  Rochester 
v.  Briggs,  50  N.  Y.  565;  and  see  also  Williams  v.  Payson,  14  La.  Ann.  7. 

Local  or  Private  Statutes. — In  New  York  and  Wisconsin  the  constitutional  pro- 
vision is  confined  to  local  or  private  statutes ;  and  in  those  States  the  preliminary 
question  arises  whether  the  particular  statute  under  consideration  is  either  local  or 
private.  We  add  the  most  recent  cases  which  discuss  this  question,  and  determine 
the  principles  by  which  it  may  be  answered  in  each  case. 


TITLES    OF   LAWS.  529 

construction  which  must  in  effect  obliterate  almost  every  law 
from  the  statute  book,  unhinge  the  business  and  destroy  the 

It  is  settled  that  if  the  statute  be  either  local  or  private,  the  requirement  as  to 
title  applies  ;  that  is,  if  the  act  be  local  as  to  territory,  no  matter  how  public  it  may 
be  in  its  character,  it  can  contain  but  one  subject,  and  that  must  be  expressed  in  the 
title. 

An  act  relating  to  the  compensation,  &c.  of  the  officers  of  a  certain  county  for 
their  official  services,  when  such  services  are  rendered  in  the  course  of  the  adminis- 
tration of  the  laws,  and  may  interest  all  citizens  of  the  State,  and  do  equally  affect 
all  who  come  within  their  range,  is  neither  local  nor  private.  Conner  v.  Mayor  &c. 
5  N.  Y.  285;  s.  c.  2  Sandf.  355;  Phillips  v.  Mayor,  1  Hilt.  483;  People  v.  Stephens, 
2  Abb.  Pr.  N.  S.  348;  Williams  v.  People,  24  N.  Y.  405.  A  statute  relating  to  a 
single  county  or  city,  such  as  a  charter,  or  act  amending  a  charter,  or  organizing  the 
city  government,  or  authorizing  improvements,  is  'local,  although  it  may  not  be 
private.  People  v.  Hills,  35  N.  Y.  449,  reversing  46  Barb.  340  (amending  a  city 
charter) ;  Rochester  v.  Briggs,  50  N.  Y.  553  (amending  a  city  charter) ;  Matter  of 
Mayer,  50  N.  Y.  504  (local  improvements  in  N.  Y.  city) ;  Brewster  v.  Syracuse,  19  N. 
Y.  116  (assessments  in  a  city  to  pay  a  contractor).  But  the  contrary  rule  prevails  in 
Wisconsin.  A  statute  for  the  removal  of  a  county  seat,  though  it  refers  the  decision 
to  a  vote  of  the  county,  is  general.  State  v.  Lean,  9  Wise.  279.  And  so  is  a  city 
charter.  Clark  v.  Janesville,  10  Wise.  136.  Also  a  statute  laying  a  tax  on  a  par- 
ticular city  or  county  is  local,  e.  g.,  the  tax  levy  of  the  city  of  New  York.  People 
v.  O'Brien,  38  N.  Y.  193;  Huber  v.  People,  49  N.  Y.  132;  Sun  Mut.  Ins.  Co.  v. 
Mayor  &c.  8  N.  Y.  241 ;  Pullman  v.  Mayor  &c.  54  Barb.  169 :  and  see  also  many 
New  York  cases  cited  above  in  this  note.  "  An  act  in  relation  to  the  fees  of  the 
sheriff  of  the  city  and  county  of  New  York,  and  to  the  fees  of  referees  in  certain 
cases  in  said  city,"  is  local;  and  a  provision  directing  all  judicial  sales  of  real  estate 
in  said  city,  except  in  actions  for  partition,  is  void,  not  being  expressed  in  the  title. 
Gaskin  v.  Meek,  42  N.  Y.  186.  A  clause  in  a  tax  levy  for  the  city  of  New  York 
restricting  the  city  in  respect  to  making  contracts  for  gas,  was  held  void,  in  Pullman 
v.  Mayor,  &c.  54  Barb.  169.  But  a  statute  establishing  a  metropolitan  police  district 
extending  over  more  than  one  county,  and  containing  penal  provisions  applicuHle  to 
all  persons  who  might  come  within  the  jurisdiction,  was  held  to  be  neither  local  nor 
private.  Burnham  v.  Acton,  7  Robt.  395.  An  act  is  local  when  the  subject  relates 
to  a  portion  only  of  the  people  or  their  property,  and  may  not,  either  in  its  subject, 
operation,  or  immediate  necessary  results,  affect  the  people  of  the  State  or  their  prop- 
erty in  general.  Thus,  in  a  general  appropriation  bill,  a  provision  appropriating 
money  towards  the  building  of  a  certain  bridge,  directed  the  supervisors  of  the  two 
counties  benefited  by  the  bridge  to  assess  upon  their  respective  counties  the  one-halt' 
of  the  rest  of  the  cost  of  the  bridge;  this  clause  directing  such  assessment  was  held 
to  be  local  and  void,  not  being  expressed  in  the  title.  People  v.  Supervisors  of 
Chatauqua  Co.  43  N.  Y.  10.  But  a  general  and  public  provision  occurring  in  a 
statute,  which  in  its  main  scope  is  local  or  private,  is  not  void,  although  not  expressed 
or  referred  to  in  the  title.  Thus,  "An  act  to  enlarge  the  jurisdiction  of  the  courts  of 
general  and  special  sessions  of  the  peace  in  and  for  the  county  of  New  York,"  was 
all  local  except  §  3,  which  related  to  convictions  in  courts  of  oyer  and  terminer 
throughout  the  State.  This  section  was  held  to  be  valid,  although  not  referred  to  in 
the  title,  as  it  was  a  public  and  general  provision.  People  v.  McCann,  16  N.  Y.  58. 
34 


530  AMENDMENT  OF   LAWS. 

labor  of  the  last  three  years.  The  first  Legislature  that  met 
tinder  the  Constitution  seems  to  have  considered  this  section  as 
directory;  and  almost  every  act  of  that  and  the  subsequent 
sessions  would  be  obnoxious  to  this  objection.  The  contem- 
poraneous exposition  of  the  first  Legislature,  adopted  or  ac- 
quiesced in  by  every  subsequent  Legislature,  and  tacitly  assented 
to  by  the  courts,  taken  in  connection  with  the  fact  that  rights 
have  grown  up  under  it  so  that  it  has  become  a  rule  of  property, 
must  govern  our  decision."  * 

Amendment  of  Laws. — Serious  confusion  is  constantly 
caused  by  the  great  looseness  which  prevails  in  our  legislative 
bodies  in  regard  to  the  practice  pursued  by  them  on  the  subject 
of  repealing  or  amending  laws.f  The  former  branch  of  the 

*  "Washington  v.  Murray,  4  California,  shall  be,  and  is  thereby,  repealed ;'  or,  as  con- 

388.  tinually  occurs,  by  clauses  upon  the  same 

f  "  Perhaps  the  greatest  evil  of  all,  as  it  subject,  and  for  the  most  part  to  the  same 

affects  the  interests  of  the  community  at  large,  effect,  as  other  clauses  in  former  acts  (but 

is  the  utter  uncertainty  that  prevails  as  to  without  any  express  reference  to  former  acts), 

what  is,  and  what  _  is  not,  repealed.  This  leaving  it  doubtful  whether  the  later  enact- 

arises  from  the  vicious  practice  already  no-  ments  supersede  and  repeal  the  earlier,  or 

ticed,  and  which  pervades  the  whole  body  of  whether  both  are  still  to  remain  in  force  and 

the  statute  law,  of  repealing  some  former  acts  constitute  distinct  provisions  in  the  statute 

or  enactments,  not  by  express  reference,  but  law.  The  doubts  and  difficulties,  and,  conse- 

by  provisions  that '  so  much  of  any  former  act  quently,  the  vast  amount  of  litigation,  of 

of  Parliament,  heretofore  made,  as  is  inconsixt-  which  this  uncertainty  is  the  cause,  are  quite 

tnt  with  or  repugnant  to  the  act  in  question,  beyond  calculation.  It  has  been  thought  that 

For  further  illustrations  of  local  or  private  statutes,  see  all  the  New  York  cases 
already  cited. 

In  addition  to  the  cases  already  referred  to,  see  the  following :  Wilkins  y.  Miller, 
9  Ind.  100;  Madison  &c.  R.  R.  v.  Whiteneck,  8  Ind.  217;  Central  Plank-road  v. 
Hannaman,  22  Ind.  484;  Hines  v.  Aydelotte,  29  Ind.  518  ;  Sturgeon  v.  Kitchens,  22 
Ind.  107;  Baldwin  v.  New  York,  42  Barb.  549;  Phillips  v.  New  York,  1  Jlilt.  483; 
State  v.  Schofield,  41  Mo.  38;  State  v.  Lafayette  Co.  Ct.  41  Mo.  39  ;  State  v.  Wardens 
•&c.  23  La.  Ann.  720;  Police  Jury  v.  Coloinb,  20  La.  Ann.  196  ;  Laefon  v.  Dufrocq,  9 
La.  Ann,  350;  State  v.  Harrison,  11  La.  Ann.  722;  Keller  v.  State,  11  Md.  525; 
Davis  v.  State,  7  Md.  151;  Gifford  v.  New  Jersey  R.  R.  2  Stockt.  171;  Deegan  v. 
Morrow,  2  Vroom,  136 ;  Robinson  v.  Lane,  19  Geo.  337 ;  Hill  v.  Comm'rs,  22  G  eo 
203;  Wheeler  v.  State,  23  Geo.  9;  Protho  v.  Orr,  12  Geo.  36;  Martin  v.  Broach,  6 
Geo.  21 ;  Weaver  v.  Lapsley,  43  Ala.  224  ;  Tuscaloosa  Bdg.  Co.  v.  Olmstead,  41  Ala. 
9;  Tadlock  v.  Eccles,  20  Tex.  782;  Cannon  v.  Hemphill,  7  Tex.  184;  Battle  v. 
Howard,  13  Tex.  345;  Commonwealth  v.  Drewry,  15  Gratt.  1;  Johnson  v.  Higgins, 
3  Mete.  (Ky.)  566  ;  Fletcher  v.  Oliver,  25  Ark.  289;  Inkster  v.  Carver,  16  Mich.  484; 
Beam  v.  Siskiyou  County,  36  Cal.  620;  Bowman  v.  Cockrill,  6  Kans.  311 ;  R.  R.  Co. 
v.  Gregory,  15  HI.  20 ;  State  v.  Squires,  26  Iowa,  340 ;  McAunich  v.  Miss.  R.  R.  20 
Iowa,  338 ;  State  v.  Gut,  13  Minn.  341 ;  Stuart  v.  Kinsella,  14  Minn.  524 ;  Atkinson 
v.  Duffy,  16  Minn.  45 ;  Phillips  v.  Albany,  28  Wise.  340 ;  Mills  v.  Charleton,  29  Wise. 
400 ;  Evans  v.  Sharp,  29  Wise.  564. 


AMENDMENT   OF   LAWS.  531 

subject  lias  not  yet  received  with  us  the  general  attention  which 
it  merits;  but  at  leasf  one  State  (Maryland)  has  acted  on  it, 
and  many  of  our  recent  State  Constitutions  contain  provisions 
on  the  subject  of  amending  legislative  enactments  which  are 
well  worthy  of  careful  attention  and  of  general  adoption.  I 
give  some  of  them :  (a) 

more  than  half  of  the  business  of  all  the  courts  discussions,  and,  at  length,  difference  among 
of  law  and  equity  iri  the  kingdom  consists  of  the  judges  themselves,  and,  ultimately,  appeals 
disputed  questions  upon  the  construction  of  to  tribunals  of  the  last  resort." 
acts  of  Parliament;  and,  if  that  be  so,  it  is  I  take  the  above  extract  from  a  very  in- 
certain  that  more  than  a  fourth  of  the  whole  teresting  letter  by  Sir  Fitzroy  Kelly,  recently 
is  caused  entirely  by  this  mischievous  course  placed  at  the  head  of  the  new  commission 
of  legislation.  It  is  often  found  impossible  to  upon  the  consolidation  of  the  statute  law  of 
reconcile  these  accumulations  of  enactments  ;  England,  as  I  find  it  extracted  in  the  Boston 
hence  the  multiplicity  of  suits,  arguments,  and  Law  Reporter  for  January,  185*7. 

(a)   Constitutional  Provisions. — The  following  are  the  provisions  in  the  existing 
State  Constitutions  relating  to  the  amendment  or  revival  of  laws : 

No  law  shall  be  revived  [revised,  Ala.]  or  amended  unless  the  new  act  contain 
the  entire  act  revived  [revised]  or  the  section  or  sections  amended ;  and  the  section 
or  sections  so  amended  shall  be  repealed. — Alabama,  IV,  2  ;  Kansas,  II,  16  ;  Nebraska, 
II,  19 ;   Ohio,  II,  16.     No  law  shall  be  revised,  altered,  or  amended,  by  reference  to 
its  title  only,  but  the  act  revised,  and  the  section  or  sections  of  the  act,  as  altered  or 
amended,  shall  be  enacted  and  published  at  length. — Arkansas,  V,  23  ;  Michigan,  IV, 
25.    No  law  shall  be  amended  or  revised  [revived,  Gal.  and  Va.]  by  reference  to  its 
title  only,  but  in-  such  case  the  act  as  revised  [revived]  or  section  as  amended  shall 
be  re-enacted  and  published  at  length. — Florida,  IV,  14 ;   California,  IV,  25 ;  Loui- 
siana, 115;   Nevada,  IV,  17;    Texas,  XII,   18;    Virginia,  V,  15.     No  law  shall  be 
revived  or  amended  by  reference  to  its  title  only,  but  the  law  revived  or  the  section 
amended  shall  be  inserted  at  length  [large,  W.  Va.]  in  the  new  act. — Illinois,  IV,  13 ; 
West  Virginia,  VI,  30.     No  law  or  section  of  the  Code  shall  be  amended  or  repealed 
by  mere  reference  to  its  title,  or  to  the  number  of  the  section  in  the  Code,  but  the 
amending  or  repealing  act  shall  distinctly  and  fully  describe  the  law  to  be  amended 
or  repealed,  as  well  as  the  alteration  to  be  made;  but  this  clause  shall  be  construed 
as  directory  only  to  the  General  Assembly. —  Georgia,  III,  6,  111.     No  act  shall  ever 
be  revised  or  amended  by  mere  reference  to  its  title ;  but  the  act  revised  or  section 
amended  shall  be  set  forth  and  published  at  full  length. — Indiana,  IV,  21  ;   Oregon, 
IV,  22.     And  no  law  or  section  of  a  law  shall  be  revived  or  amended  by  reference 
to  its  title  or  section  only ;  and  it  shall  be  the  duty  of  the  General  Assembly,  in 
amending  any  article  or  section  of  the  code  of  laws  of  this  State,  to  enact  the  same 
as  the  said  article  or  section  would  read  when  amended. — Maryland,  III,  29.     No  act 
shall  be  revived  or  re-enacted  by  mere  reference  to  the  title  thereof;  nor  shall  any 
act  be  amended  by  providing  that  designated  words  thereoi  shall  be  struck  out,  or 
that  designated  words  shall  be  struck  out  and  others  inserted  in  lieu  thereof;  but  in 
every  such  case  the  act  revived  or  re-enacted,  or  the  act  or  part  of  act  amended, 
shall  be  set  forth  and  published  at  length,  as  if  it  were  an  original  act  or  provision. 
Missouri,  IV,  25.     All  acts  which  repeal,  revive,  or  amend  former  laws,  shall  recite 
in  their  caption  or  otherwise  the  title  or  substance  of  the  law  repealed,  revived,  or 
amended. — Tennessee,  II,  17. 


532  AMENDMENT   OF   LAWS. 

In  regard  to  the  subject  of  repeal,  it  lias  been  decided,  in 
Maryland,  that  the  constitutional  provision  that  "  no  law,  or 
section  of  law,  shall  be  revised,  amended,  or  repealed,  by 
reference  to  its  title  or  section  only,"  is  not  inconsistent  with 
the  doctrine  of  repeal,  by  implication,  of  all  laws  inconsistent 
with  an  independent  act  of  the  Legislature  establishing  a  new 
or  revising  some  previous  policy  of  the  State,  (a)  And,  in 


(a)  Amendment  of  Statutes. — The  provision  is  mandatory  and  not  directory. 
Armstrong  v.  Berreman,  13  Ind.  422. 

The  requirement  does  not  mean  that  the  old  section  shall  be  set  out  at  length, 
but  the  section  as  amended.  Greencastle  &c.  Co.  v.  State,  28  Ind.  882;  overruling 
Langdon  v.  Applegate,  5  Ind.  327 ;  Jones  v.  Commissioner,  &c.  21  Mich.  236 ; 
Noland  v.  Costello,  2  Oregon,  57;  Portland  v.  Stock,  II.  69;  Tuscaloosa  Bdg.  Co. 
v.  Olmstead,  41  Ala.  9.  If  the  old  act  is  recited,  it  is  merely  surplusage,  and  a 
clerical  error  in  such  recital  does  not  affect  the  validity  of  the  amending  statute. 
Draper  v.  Fally,  33  Ind.  465;  People  v.  McCallum,  1  Neb.  182.  But  the  \vhole 
section  as  amended,  however  long,  and  of  however  many  clauses,  it  may  consist, 
must  be  set  forth.  Martinsville  v.  Frieze,  33  Ind.  507. 

Under  the  constitutional  provision  in  Missouri  given  above,  a  statute  amending 
a  section  of  a  city  charter  in  the  matter  of  boundaries,  and  embracing  in  the  new 
act  everything  relating  to  boundaries,  was  held  constitutional,  although  the  amended 
section  embraced  other  matter  than  boundaries,  and  was  not  as  a  whole  embodied 
and  inserted  in  the  amending  statute.  Boonville  v.  Trigg,  46  Mo.  288. 

Where  the  amendment  recites  the  sections  as  amended  at  length,  and  refers 
properly  to  the  act  by  its  title,  it  is  no  objection  to  the. validity  of  the  amendment 
that  it  affects  other  provisions  of  the  act.  Harrington  v.  Wands,  23  Mich.  885. 

For  cases  where  statutes  where  held  invalid,  because  they  did  not  set  out  the 
sections  or  act  amended  at  full  length,  see  Rogers  v.  State,  6  Ind.  31 ;  Tuscaloosa 
Bridge  Co.  v.  Olmstead,  41  Ala.  9. 

The  repeal  of  a  definite  portion  of  a  section  or  act  without  setting  forth  at 
length  the  part  not  repealed,  is  valid.  Chambers  v.  State,  35  Tex.  307. 

The  constitutional  provision  in  question  has  no  application  to  repeals  by  implica- 
tion. People  v.  Mahoney,  13  Mich.  481 ;  Anderson  v.  Commonwealth,  18  Gratt.  295; 
Swartwout  v.  Mich.  Air  Line  Co.  24  Mich.  389 ;  Branham  v.  Lange,  16  Ind.  497 ; 
Lehman  v.  McBride,  15  Ohio,  N.  S.  573.  In  Alabama,  where  the  constitutional 
provision  is,  "  And  no  law  shall  be  revised  or  amended,  unless  the  new  act  contain 
the  entire  act  revised,  or  the  section  or  sections  amended,  and  the  section  or  sections 
so  amended  shall  be  repealed,"  it  was  held  that  a  statute  which  repeals  in  general 
terms,  all  acts  and  parts  of  acts  inconsistent  therewith,  is  not  amendatory  and  need 
not  set  out  the  sections  parts  of  which  are  thereby  repealed.  Falconer  v.  Robinson, 
46  Ala.  340;  and  where  the  Legislature  fails  to  repeal  the  amended  sections,  the 
Constitution  itself  effects  the  repeal  and  the  statute  is  valid.  Medical  College  v. 
Muldon,  46  Ala.  603 ;  and  in  Ohio,  the  provision  as  to  repealing  the  section  or  act 
amended,  was  held  to  be  directory  merely.  Lehman  v.  McBride,  15  Ohio,  N.  S. 
573.  That  no  Legislature  can  lay  down  for  a  subsequent  one,  a  binding  rule  as  to 
how  statutes  shall  be  amended,  see  Morgan  v.  Smith,  4  Minn.  104,  107. 


CONSTITUTIONAL  MAJORITIES.  533 

regard  to  the  general  policy  of  the  restriction,  it  has  been  said, 
in  the  same  State,  that  "  this  clause  was  inserted  in  the  Con- 
stitution for  the  purpose  of  preventing  incautious  and  fraudu- 
lent legislation,  and  to  enable  members  to  act  knowingly  upon 
all  subjects,  and  to  guard  them  from,  the  contingency  of  voting 
for  the  repeal  or  revival  of  laws,  through  mistake  or  accident, 
under  the  deceptive  language  often  employed  in  the  titles  of 
acts."  * 

Constitutional  Majorities. — The  'Constitutions  of  most  of 
the  States  contain  provisions  in  regard  to  certain  subjects 
deemed  of  special  importance,  by  which  no  legislative  action 
can  be  had  unless  positive  and  specific  majorities  are  ob- 
taiued.f  (a)  Some  of  the  most  prominent  are  as  follows  :— 

Texas. — "  No  private  corporation  shall  be  created  unless  the  bill  creating 
it  shall  be  passed  by  two-thirds  of  both  houses  of  the  Legislature ;  and  two- 

*  Davis  v.  The  State,  7  Maryland,  151.  25  Wend.  605  ;  Purdy  v.  The  People,  4  Hill, 

la   Indiana,  as   to   the   construction   of   the  884 ;  Buffalo  and  N.  Falls  R.  R.  v.  Buffalo,  5 

clause,  see  Rogers'  Admrs.  v.   The  State,  6  Hill,  209 ;  People  ex  rel.  Lynch  v.  Mayor,  25 

Indiana,  31.     The  Constitution  of  Tennessee  Wend.  680;  People  v.  Morris,  13  Wend.  325; 

contains  a  provision  to  the  effect,  that  after  a  Lansing  v.  Smith,  8  Cowen,  146;  Coml.  Bk. 

bill  has  been  rejected,  no  bill  containing  the  of  Buffalo  v.  Sparrow,  2  Denio,  97  ;  De  Bow 

same  substance  shall  be  passed  into  a  laNv  v.  The  People,  1  Denio,  9 ;  GifFord  v.  Living- 

during  the  same  session.     Cons.  art.  ii,  §  19.  ston,  2  Denio,  380 ;  Russell  v.  The  Mayor,  2 

\  For  cases  decided  on  these  provisions,  Denio,  461  ;  Warner  v.  The  People,  2  Denio, 

as  to  the  requisition  of  a  certain  number  of  272  ;  Supervisors   of  Niagara  v.   People,   4 

votes,  and  how  the  fact  is  to   appear,  see  Hill,  20 ;  Supervisors  of  Niagara  v.  People,  7 

Thomas  v.  Daken,  22  Wend.  112;   Warner  v.  Hill,  504;  see,  also,  ante,  ch.  iv,  p.  54. 
Beers,  23  Wend.  103 ;  Hunt  v.  Vanbelstyer, 

(a)  Majority  of  Two-thirds. — "  Two-thirds"  of  a  "  house"  or  "  branch"  means 
two-thirds  of  a  duly  constituted  quorum,  it  seems.  Green  v.  Weller,  32  Miss.  650. 
But  where  the  provision  is  as  to  what  proportion  of  the  House  shall  make  a  quorum, 
"  House"  means  the  entire  number  possible,  without  deducting  for  vacancies  by 
death,  resignation,  or  failure  to  elect.  In  Matter  of  Executive  Communication,  12 
Flor.  653. 

For  a  case  in  which  a  statute  was  held  void,  because  not  passed  by  the  requisite 
two-thirds,  see  Corning  v.  Greene,  23  Barb.  33.  Where  a  statute  requires  a  two- 
thirds  vote  for  its  passage,  it  is  not  to  be  presumed  that  an  amendment  constitutes 
a  bill  a  new  law,  so  that  the  bill  as  amended  must  also  receive  a  two-thirds  vote; 
that  the  amendments  are  concurred  in  is  prima  facie  enough.  State  v.  McCulloch, 
11  Ind.  424.  The  proceedings  are  to  be  presumed  constitutional,  unless  the  journals 
show  affirmatively  the  contrary.  State  v.  McCulloch,  11  Ind.  424  ;  Northern  Ind.  R. 
R.  v.  Milliken,  7  Ohio,  K  S.  383;  Matter  of  Taxpayers  of  Kingston,  40  How.  Pr.  444. 

Where  the  Constitution  requires  the  submission  of  a  question  to  "  the  electors  of 
a  county"  at  a  general  election,  and  the  assent  of  "  a  majority  of  such  electors 
voting  thereon,"  it  means  a  majority  of  the  electors  who  vote  at  such  election,  and 
not  merely  of  those  voting  on  the  particular  question.  Bayard  v.  Klinge,  16  Minn. 
249;  but,  per  contra,  "  a  majority  of  all  the  votes  cast  at  such  election"  means  of 
those  cast  upon  the  particular  question.  Gillespie  v.  Palmer,  20  Wise.  544. 


534  CONSTITUTIONAL  MAJORITIES. 

thirds  of  the  Legislature  shall  have  power  to  revoke  and  repeal  all  private  cor- 
porations, by  making  compensation  for  the  franchise."  * 

Michigan, — "  The  Legislature  shall  pass  no  law  altering  or  amending  any 
act  of  incorporation  heretofore  granted,  without  the  assent  of  two-thirds  of  the 
members  elected  to  each  house ;  nor  shall  any  such  act  be  renewed  or  ex- 
tended. This  restriction  shall  not  apply  to  municipal  corporations."  f 

"  The  assent  of  two-thirds  of  the  members  elected  to  each  house  of  the 
Legislature,  shall  be  requisite  to  every  bill  appropriating  the  public  money  or 
property  for  local  or  private  purposes."  J 

Indiana. — "  A  majority  of  all  the  members  elected  to  each  house  shall  be 
necessary  to  pass  every  bill  or  joint  resolution."  | 

In  Michigan,  under  the  clause  above  cited, — that  the  Legis- 
lature shall  pass  no  act  of  incorporation,  unless  with  the  assent 
of  at  least  two-thirds  of  each  house, — it  has  been  decided  that 
by  this  phrase  is  meant  the  legislative  body,  or  quorum  to  do 
business,  comprising  a  majority  of  the  members  elected,  to  and 
qualified  to  act  as  members  of  the  body.^f  (a) 

*  Constitution  of  Texas,  art.  vii,  §  31.  |  Constitution  of  Indiana,  art.  iv,  §  25. 

f  Constitution  of  Michigan,  art.  xv,  §  8.  ^f  Southworth  v.  Palmyra  and  Jackson  R. 

j  Constitution  of  Michigan,  art.  iv,  §  45.        R.  Co.  2  Michigan,  287. 

(a)  Uniform  Operation  of  General  Laws.  Constitutional  Provisions. — The  follow- 
ing State  Constitutions  expressly  require  that  all  general  laws  shall  have  a  uniform 
operation.  California,  i,  11 ;  Florida,  Dec,  of  E.  12;  iv,  18;  Georgia,  i,  26;  Indiana, 
iv,  23;  Iowa,  i,  6;  iii,  30;  Kansas,  ii,  17;  Nevada,  iv,  21;  Ohio,  ii,  26. 

The  following  State  Constitutions  require  general  laws  in  all  cases  where  a  gen- 
eral law  can  be  made  applicable.  Florida,  iv,  18  ;  Illinois,  iv,  22  ;  Indiana,  iv,  23 ; 
Iowa,  iii,  30;  Kansas,  ii,  17;  Maryland,  iii,  33;  Missouri,  iv,  27;  Nevada,  iv,  21; 
West  Virginia,  vi,  39. 

Provisions  in  Regard  to  General  Laws.  What  are  General  Laws. — See  cases  as  to 
general  and  local  laws  cited  in  note  upon  the  Constitutional  provision' as  to  the  title 
and  subject  of  statutes,  p.  529.  In  addition  to  the  cases  referred  to,  the  following  are 
illustrations.  A  statute  providing  for  the  compensation  of  county  officers  has  been 
held  local.  State  v.  The  Judges,  21  Ohio,  N.  S.  1.  A  declaration  in  the  statute  itself 
that  it  is  a  "  public  "  law  is  not  sufficient  to  make  it  "general  "  in  the  sense  of  the 
Constitution.  Burhop  v.  Milwaukee,  21  Wise.  257.  An  act  regulating  the  fees  of 
an  office  was  held  not  to  be  general.  Ryan  v.  Johnson,  5  Cal.  86 ;  and  see  llenry  v. 
Henry,  13  Ind.  250. 

General  Laws  to  have  a  Uniform  Operation. — The  Constitution  is  complied  with 
in  this  respect  when  the  law  operates  uniformly  upon  all  persons  who  are  brought 
within  the  relations  and  circumstances  provided  for  by  it.  McAunich  v.  Miss.  &c. 
R.  R.  20  Iowa,  338.  The  statute  in  this  case  related  to  the  duties  of  railroads.  An 
act  giving  the  Court  of  Common  Pleas  jurisdiction  over  certain  offences  in  particu- 
lar counties  failed  to  comply  with  this  requirement  as  to  uniformity,  and  was  de- 
clared invalid.  Kelly  v.  State,  6  Ohio,  N.  S.  269.  "  Uniform"  does  not  mean  '<  uni- 
versal," and  a  special  statute  may  allow  a  change  of  venue  in  a  particular  case  for 


THE    JUDICIARY.  535 

The  Judiciary. — Most  of  the   State  Constitutions,  as  has 
"been  elsewhere  said,  seek  to  draw  a   clear  line  between  the 

causes  not  specified  in  the  Practice  Act.  Smith  v.  Judge,  17  Cal.  547;  see  also  Ex 
parte  Andrews,  18  Cal.  678 ;  French  v.  Teschenacker,  24  Cal.  518.  Acts  relating  to 
particular  classes  of  persons  are  valid,  e.  g.,  one  regulating  interest  to  be  charged  by 
pawnbrokers.  Jackson  v.  Shawl,  29  Cal.  267.  That  "  operation"  refers  to  the  prac- 
tical working  and  effect,  and  that  a  statute  to  be  submitted  to  the  votes  of  each 
county,  and  to  be  in  force  or  not  in  the  particular  county  according  to  its  vote,  is. 
not  uniform  in  its  operation,  see  Geebrick  v.  State,  5  Clarke  (Iowa)  491. 

An  act  authorizing  judgment  and  execution  without  benefit  of  appraisement  on 
notes,  where  such  benefit  is  waived,  is  uniform  in  its  operation  and  is  a  general  law. 
Smith  v.  Doggett,  14  Ind.  442.  A  State  Constitution  provided  that  "  the  Legisla- 
ture shall  fix  the  rate  of  interest,  and  the  rate  so  established  shall  be  equal  and  uni- 
form throughout  the  State  ;"  held  that  an  act  fixing  the  rate  at  six  per  cent ,  but  in 
case  of  a  loan  giving  parties  the  right  to  stipulate  in  the  instrument  for  any  rate  up 
to  ten  per  cent.,  does  not  conflict  with  this  provision.  Caruthers  v.  Andrews,  2 
Cold.  378.  A  law  authorizing  the  addition  and  taxation  of  five  per  cent,  upon  the 
recovery  as  costs  in  favor  of  the  prevailing  party  in  cases  litigated  in  San  Francisco, 
is  not  unequal  in  its  operation.  Corwin  v.  Ward,  35  Cal.  195  ;  see  also  Brooks  v, 
Hyde,  37  Cal.  366.  If  a  statute  is  enacted  for  the  whole  State,  and  is  in  force  over 
the  whole  State,  it  makes  no  difference  that  the  condition  of  certain  parts  of  the 
State  may  be  such  that  the  law  has  no  practical  operation  therein.  Leavenwortli  v. 
Miller,  7  Kans.  479.  An  act  excepting  certain  counties  from  the  general  statute  as 
to  fences,  was  held  invalid,  in  Darling  v.  Rodgers,  7  Kans.  592. 

The  clause  in  the  Constitution  of  Ohio,  requiring  that  all  general  laws  should 
have  a  uniform  operation,  was  Held  to  be  prospective,  and  not  to  repeal  existing 
special  statutes.  Allbyer  v.  State,  10  Ohio,  N.  S.  588.  But  a  similar  clause  in  Iowa 
was  held  to  prohibit  the  amendment  of  existing  municipal  charters  by  special  act.. 
Ex  parte  Pritz,  9  Iowa,  30;  Davis  v.  Woolnough,  Ib.  104  ;  and  see  Brown  v.  State, 
23  Md.  503  ;  Atchison  v.  Bartholomew,  4  Kans.  124. 

Special  Legislation  Prohibited  when  General  Laws  can  be  made  Applicable. — The 
question  whether  a  general  law  can  be  made  applicable  is  one  for  the  discretion  of 
the  Legislature  and  not  for  the  courts.  State  v.  County  Ct.  of  Boone  Co.  50  Mo. 
317;  People  v.  Bowen,  30  Barb.  24;  State  v.  Hitchcock,  1  Kans.  178.  In  Indiana, 
the  Constitution  says  :  "  In  all  the  cases  enumerated  in  the  preceding  section,  and 
in  all  other  cases  where  a  general  law  can  be  made  applicable,  all  laws  shall  be  gen- 
eral and  of  uniform  operation  throughout  the  State."  Under  this  provision,  it  has 
been  held  that  where  a  general  law  is  not  required  by  express  terms,  it  is  for  the 
Legislature  and  not  for  the  courts  to  say  whether  a  general  law  can  be  made  ap- 
plicable. Longworth's  Ex'ors  v.  Common  Council  of  Evansville,  32  Ind.  322 ;  and 
see  State  v.  Hackett,  29  Ind.  302  ;  Gentile  v.  State,  Ib.  409.  Among  the  subjects  on 
which  special  legislation  is  prohibited  by  the  Constitution  of  Indiana  is  the  punish- 
ment of  crimes;  but  a  prohibitory  liquor  law  was  held  not  to  be  a  special  law. 
Hingle  v.  .State,  24  Ind.  28.  Also  a  law  applicable  generally  to  a  particular  class  of 
cases  is  not  special.  Madison  &c.  R.  R.  v.  Whiteneck,  8  Ind.  217  (railroads) ;  Henry 
v.  Henry,  13  Ind.  250  (appeals  in  certain  classes  of  cases);  Hymes  v.  Aydelotte,  26 
Ind.  431;  Brown  v.  State,  23  Md.  503  (negro  apprentices) ;  State  v.  County  Commrs. 
29  Md.  516  (roads  in  a  particular  county).  A  statute  applying  generally  throughout 


536  THE   JUDICIARY. 

legislative  and  judicial  functions;  but  in  hardly  any  thing 
have  they  less  agreed  than  in  regard  to  the  creation  and  the 
tenure  of  judicial  office.  In  some  cases  the  States  disagree  with 
each  other ;  and  in  others  their  own  policy,  at  different  times, 
is  irreconcilably  variant  and  discrepant.  In  New  Hampshire, 
the  Constitution  in  noble  language  declares  it  to  be  "  essential 
to  the  preservation  of  the  rights  of  every  individual,  his  life, 
liberty,  property,  and  character,  that  there  be  an  impartial  in- 
terpretation of  the  laws  and  administration  of  justice.  It  is  the 
right  of  every  citizen  to  be  tried  by  judges  as  impartial  as  the 
lot  of  humanity,  will  admit.  It  is,  therefore,  not  only  the  best 
policy,  but  for  the  security  of  the  rights  of  the  people,  that  the 
judges  of  the  Supreme  Judicial  Court  should  hold  their  offices 
so  long  as  they  behave  well, — subject,  however,  to  such  limita- 
tions, on  account  of  age,  as  may  be  provided  by  the  Constitu- 
tion of  the  State  ;  and  that  they  should  have  honorable  salaries, 
ascertained  and  established  by  standing  laws." ' 

On  the  other  hand,  the  Constitution  of  Mississippi  holds 
this  language :  "  No  person  shall  ever  be  appointed  or  elected 
to  any  office  in  this  State  for  life,  or  during  good  behavior;  but 
the  tenure  of  all  offices  shall  be  for  some  limited  period  of  time, 
if  the  person  appointed  or  elected  thereto  shall  so  long  behave 

well."t 

The  practice  of  the  States  has  been  equally  discrepant.  In 
some,  the  judges  have  been  appointed  for  a  term  of  years;  in 

*  Constitution  of  New  Hampshire,  part  i,          \  Constitution  of  Mississippi,  art.  i,  §  30. 
art.  35. 


the  State  to  elections  required  by  the  existing  law  to  be  held  on  a  certain  day,  and 
fixing  another  day  therefor,  is  not  a  "  special  "  law  in  the  sense  of  the  Constitution. 
State  v.  Fiala,  47  Mo.  310.  An  act  auditing  a  pre-existing  claim  against  a  county 
is  special  and  invalid.  Williams  v.  Bidleman,  7  Nev.  68.  A  statute  curing  defects 
in  the  organization  of  a  particular  school  district  which  had  been  defectively  organ- 
ized under  the  general  law,  is  not  in  violation  of  the  provision  forbidding  any 
special  law  where  a  general  law  might  be  made  applicable.  State  v.  Squires,  26 
Iowa,  340.  Where  the  United  States  authorized  the  grant  of  certain  privileges  to  a 
railroad  over  a  particular  route,  a  law  chartering  a  railroad  for  that  route  was  held 
valid,  as  a  general  law  could  not  be  made  applicable.  Clinton  v.  Cedar  Rapids  &c. 
R.  R.  24  Iowa,  455. 

A  'special  statute  in  the  meaning  of  the  Constitutional  prohibition,  is  one  re- 
quiring plea  and  proof  at  common  law.     Toledo  &c.  R.  R.  v.  Nordyke,  27  Ind.  95. 


SUITS   AGAINST  THE   STATE.  537 

some,  during  good  behavior;  in  some,  till  a  specified  age;  in 
some,  they  have  been  created  by  a  governor  and  Senate ;  in 
some,  by  the  Legislature ;  and  now,  within  the  last  ten  years, 
since  the  adoption  of  the  New  York  Constitution  of  1846, 
many  of  the  States  have  made  them  eligible  by  the  popular 
voice,  and  for  terms  of  office  varying  from  six  to  fifteen  years. 

I  have  intended  to  avoid,  in  this  volume,  the  discussion  of 
any  questions  having  any  political  bearing;  nor  can  it  justly  be 
said  that  these  various  systems  have  been  as  yet  sufficiently 
tried  to  furnish  a  complete  test  of  what  may  be  the  best  mode 
of  creating  these  officers ;  or  as  to  that  which  is  probably,  more 
important,  what  should  be  the  tenure  of  judicial  office  in  this 
country;  but  all  will  agree  that  there  is  no  subject  of  greater 
importance ;  and  that  every  other  consideration  must  finally 
give  way  to  the  paramount  necessity  of  securing  an  honest  and 
an  able  j  udiciary. 

In  Louisiana,  the  provisions  of  the  State  Constitution  creat- 
ing the  judiciary,  and  prescribing  the  mode  of  their  appoint- 
ment or  election,  have  been  held  to  be  incompatible  with  the 
statute  authorizing  a  judge  who  is  incompetent,  or  who  declines 
to  try  a  cause, — or,  in  the  language  of  that  State,  recuses  him- 
self,— to  appoint  a  member  of  the  bar  for  the  purpose ;  and  the 
act  has  been  declared  void.  * 

Suits  against  the  State. — Several  of  the  States  have,  by 
special  constitutional  clauses,  abolished  the  old  feudal  doctrine 
which  forbids  all  judicial  redress  against  the  Government. 
These  provisions  are  so  much  the  more  important,  because  they 
tend  to  diminish  the  number  of  those  applications  to  legislative 
consideration  which  are  amono;  the  most  fertile  sources  of  that 

O 

corruption  which  is  one  of  the  great  evils  of  our  age.  I  annex 
the  provisions  as /they  stand  in  several  of  the  State  Constitu- 
tions : — 

California. — "  Suits  may  be  brought  against  the  State  in  such  manner  and 
in  such  courts  as  shall  be  directed  by  law."  f 

Wisconsin. — "  The  Legislature  shall  direct,  by  law,  in  what  manner  and  in 
what  courts  suits  may  be  brought  against  the  State."  J 

*  The  State  of  Louisiana  v.  Judge  of  Sixth          f  Constitution  of  California,  art.  xi,  §  11. 
District,  9  La.  Ann.  R.  62.  \  Constitution  of  Wisconsin,  art.  iv,  §  27. 


538  SUITS  AGAINST   THE   STATE. 

Arkansas. — "  The  General  Assembly  shall  direct,  by  law,  in  what  courts 
and  in  what  manner  suits  may  be  commenced  against  the  State."  * 

Missouri. — "The  General  Assembly  shall  direct,  by  law,  in  what  manner 
and  in  what  courts  suits  may  be  brought  against  the  State."  f 

Illinois. — "  The  General  Assembly  shall  direct,  by  law,  in  what  manner 
suits  may  be  brought  against  the  State. "J 

Indiana. — "Provision  may  be  made,  by  general  law,  for  bringing  suit 
against  the  State  as  to  all  liabilities  originating  after  the  adoption  of  this  Con- 
stitution ;  but  no  special  act  authorizing  such  suit  to  be  brought,  or  making 
compensation  to  any  person  claiming  damages  against  the  State,  shall  ever  be 
passed."  || 

In  New  York,  the  old  rule  prevails,  that  the  State  cannot 
be  sued,  in  her  own  courts,  for  any  cause  of  action.  In  con- 
formity with  this  principle,  it  has  been  decided,  that  the  State 
courts  have  no  power  to  restrain,  by  injunction,  the  acts  of 
officers  of  the  State  who  are  proceeding  under  the  authority  of 
law ;  and  that  the  fact  of  the  statute  in  question  being  uncon- 
stitutional forms  no  ground  for  granting  the  injunction.^]"  The 
courts  of  the  Federal  Government,  however,  are  the  legal  supe- 
riors of  the  States  in  cases  in  which  they  have  jurisdiction ;  and 
it  has  been  held  that  an  injunction  may  be  granted  by  the 
United  States  Courts  to  restrain  State  officers  from  collecting  a 
State  tax  which  was  unlawful  under  the  laws  of  the  United 
States** 

A  few  interesting  miscellaneous  provisions  of  our  State  Con- 
stitutions may  be  noticed.  (V)  By  art.  iv,  §  11,  of  the  Consti- 

*  Constitution  of  Arkansas,  art.  iv,  §  22.  trust.     Milhau  v.  Sharp,'15  Barb.  193.     So, 

iConstitxition  of  Missouri,  art.  iii,  §  25.  again,  the  same  principle  has  been  decided 
Constitution  of  Illinois,  art.  iii*  §  34.  where  the  act  of  the  corporation  was  in  viola- 
Constitution  of  Indiana,  art.  iv,  §  24.  tion  of  an  express  law,  and  tended  to  increase 
^1"  Thompson  v.  The  Commissioner  of  the  the  taxes.     De  Baun  v.  The  Mayor,  16  Barb. 
Canal  Fund,  2  Abbott's  Pr.  Rep.  248.  392.     In  this  case  Edmonds,  J.,  and  Morris, 

In  regard  to  municipal  corporations,  the  J.,  dissented. 

contrary  doctrine  is  held ;  and  where  an  act  Under  the  former  judicial  system  of  the 

of  such  a  corporation  is  clearly  illegal,  and  State,  the  Court  of  Chancery  had  no  power  to 

the  necessary  effect  of  the  act  will  be  to  injure  enjoin  proceedings  for  the  collection  of  an  ille- 

or  impose  a  burden  on  the  property  of  a  cor-  gal  assessment.     Meserole  v.  Mayor  of  Brook- 

porator,  it  will  warrant  the  interference  of  the  lyn,  8  Paige,  198  ;  reversed  on  appeal,  by  the 

court    by    injunction.      Christopher  v.   The  Court  of  Errors,  26  Wend.  132. 

Mayor,  <fcc.  of  N.  Y.  13  Barb.  567.     So,  if  the  **  Osborn  v.  The  IT.  S.  Bank,  9  Wheat, 

municipal  corporation  is  guilty  of  a  breach  of  738. 


(a)  Various  Particular  Constitutional  Provisions.  But  One  Corporation  to  le  Cre- 
ated at  a  Time. — Where  a  Constitution  provided  that  "  No  law  shall  create,  renew, 
or  extend  the  charter  of  more  than  one  corporation,"  a  statute  giving  privileges  to 


MISCELLANEOUS  PROVISIONS.  539 

tution  of  Alabama,  the  power  to  remit  fines  and  forfeitures  is 
given  to  the  governor ;  and  in  that  State  it  has  been  held,  that 

several  corporations  was  held  to  be  valid.  Cleveland  &c.  R.  R.  v.  Erie,  27  Penn. 
St.  380. 

No  Special  Act  of  Incorporation. — "The  General  Assembly  shall  pass  no  special  act 
conferring  corporate  powers."  An  act  declaring  that  the  purchasers  of  a  certain 
franchise  should  have  corporate  powers,  was  held  invalid.  Atkinson  v.  Marietta  &c. 
R.  R.  15  Ohio,  N.  8.  21.  The  same  was  held  of  a  statute  enlarging  the  corporate 
limits  of  a  city.  State  v.  Cincinnati,  20  Ohio,  N.  S.  18;  Wyandotte  City  v.  Wood,  5 
Kans.  603.  But  an  act  allowing  generally  any  city  or  town  to  amend  its  charter,  is 
valid.  Von  Phul  v.  Hammer,  29  Iowa,  222.  Under  a  similar  provision  it  was  held 
that  the  giving  to  an  individual  the  privilege  of  keeping  a  ferry,  was  not  a  violation 
of  the  prohibition.  McRoberts  v.  Washburne,  10  Minn.  23. 

Banking  Laws  to  ~be  Submitted  to  the  People. — "  No  act  of  the  General  Assembly 
authorizing  corporations  or  associations  with  banking  powers,  shall  go  into  or  in  any 
manner  be  in  force,  unless  the  same  shall  be  submitted  to  the  people  at  the  general 
election,"  &c.  An  amendment  of  the  general  banking  law  in  relation  to  the- matter 
of  taxation  need  not  be  submitted  to  vote.  Bank  of  Rep.  v.  Hamilton  Co.  21  111.  53. 
Nor  an  amendment  making  all  bills  presented  together  payable  as  one  obligation. 
Reaper's  Bank  v.  Willard,  24  111.  433. 

Appropriation  Bills. — Where  the  Constitution  required  that  every  act  making  an 
appropriation  should  distinctly  state  the  sum  appropriated,  a  statute  appropriating 
"  not  exceeding  $300,000,"  to  be  paid  "out  of  any  money  thereafter  in  the  treasury 
not  otherwise  appropriated,"  was  held  valid  (Miller  and  Stewart,  JJ.,  dissenting). 
McPherson  v.  Leonard,  29  Md.  377. 

School  Fund. — The  Constitution  creating  a  "  school  fund,"  and  requiring  it  to  be 
preserved,  a  statute  inform  contemplating  a  loan  from  the  fund  to  a  corporation,  but 
Avhich  in  fact,  from  the  nominal  security  provided  for,  amounted  to  a  gift,  was  held  to- 
be  an  evasion  of  the  Constitution  and  void.  People  v.  Allen,  42  N.  Y.  404. 

Origin  of  Revenue  Bilk. — Where  bills  raising  revenue  must  originate  in  the  lower 
house,  it  was  held  that  a  bill  incorporating  a  town  and  giving  it  power  to  raise 
money  by  taxation,  was  not  a  revenue  bill,  and  might  originate  in  the  Senate.  Har- 
per v.  Comm'rs,  23  Geo.  566. 

Bills  to  ~be  Read  Three  Times. — It  is  not  necessary  that  everything  which  is  to  be- 
come a  law  by  the  adoption  of  the  bill  shall  be  read.  Thus  the  reading  a  bill  enact- 
ing a  code  is  enough  without  reading  the  code  itself.  Dew  v.  Cunningham,  28  Ala. 
466.  And  where  the  Constitution  provides  a  particular  style,  "  Be  it  enacted,"  etc., 
it  is  sufficient  if  the  bill  enacting  the  code  has  such  style.  Hid.  An  association 
may  be  incorporated  and  its  constitution  made  its  charter  without  reciting  the  char- 
ter in  the  act.  Bibb  County  L.  Association  v.  Richards,  21  Geo.  592. 

Such  a  provision  was  held  directory  in  Miller  v.  State,  3  Ohio,  N.  S.  475.  Com- 
pliance with  the  requirement  will  be  presumed  where  hws  have  been  passed  and 
approved  by  the  Legislature,  although  the  journals  do  not  show  such  readings,  the 
Constitution  not  requiring  entry  of  the  readings  in  the  journals.  Supervisors  v.  Peo- 
ple, 25  111.  181. 

But  where  it  did  not  appear  from  the  journals  that  the  bill  had  ever  been  put 
upon  its  passage  or  voted  upon,  it  was  held  that  the  bill  never  became  a  law,  as  the 
ayes  and  noes  should  have  been  on  the  journals.  People  v.  Stearne,  35  El.  121. 


540  MISCELLANEOUS   PROVISIONS. 

tliis  power  cannot  be  exercised  by  the  Legislature,  and  that, 
therefore,  any  act  which  attempts,  directly  or  indirectly,  to 
remit  a  fine,  either  before  or  after  it  has  been  paid,  is  unconsti- 
tutional.* 

In  Louisiana,  the  Constitution  declares  that  the  State  shall 
not  become  a  subscriber  to  the  stock  of  any  corporation  or 
joint-stock  company ;  f  but  it  has  been  held  that  this  does  not 
take  from  the  Legislature  the  power  to  authorize  a  subscription 
by  a  municipal  corporation  to  a  corporation  or  joint-stock  com- 
pany. J 

The  Constitution  of  ~New  York,  of  1846,  making-  an  effort 

7  7  O 

*  Haley  v.  Clark,  26  Ala.  439.  La.   Ann.  R.  341 ;  City  of  New  Orleans  v. 

f  Art.  121.  Graihle,  9  La.  Ann.  R.  561. 

\.  Police  Jury  v.  McDonogh's  Succession,  8 

Publication  of  Statutes. — Omission  to  publish  a  statute  will  not  afiect  its  validity. 
Peterman  v.  Huling,  31  Penn.  St.  432:  see  also  Parkinson  v.  State,  14  Md.  184. 
"  No  general  law  shall  be  in  force  until  published."  Held  that  a  publication  by  mis- 
take among  the  private  acts  was  a  sufficient  compliance.  In  re  Boyle,  9  AVisc.  264. 
But  unauthorized  publication  by  a  private  individual  is  not  enough.  Clarke  v. 
Janesville,  10  Wise.  136.  The  provision  as  to  publishing  within  a  certain  time  is  so 
far  directory  that  the  statute  may  be  published  afterwards,  if  within  a  reasonable 
time.  State  v.  Lean,  9  Wise.  279. 

Where  private  statutes  were  not  to  become  laws  until  the  payment  of  an  enroll- 
ment tax,  it  was  held  that  this  did  not  apply  to  provisions  of  a  public  nature  incor- 
porated in  them.  Peterman  v.  Huling,  31. Penn.  St.  432. 

Monopolies. — "  No  man  or  set  of  men  are  entitled  to  exclusive  public  emoluments 
or  privileges  from  the  community."  It  was  held  under  this  provision  that  a  statute 
giving  a  particular  gas  company  the  right  to  lay  gas  pipes  in  the  streets  of  a  city 
exclusive  as  against  all  except  such  as  might  afterwards  be  authorized  by  the  Legis- 
lature, was  a  monopoly  and  void.  Norwich  Gas  L.  Co.  v.  Norwich  C.  Gas  Co.  25 
Conn.  19.  But  a  statute  of  New  York,  where  there  is  no  such  express  constitutional 
restriction,  authorizing  a  city  to  grant  the  "  exclusive"  right  to  lay  gas  pipes  in  the 
streets  to  a  particular  company,  was  held  not  to  constitute  a  monopoly.  People  v. 
Bowen,  30  Barb.  24.  An  act  giving  towns  through  licensed  agents  the  exclusive 
right  to  sell  liquors,  was  held  not  to  create  a  monopoly,  in  State  v.  Brennan's  Liquors, 
25  Conn.  278.  But  a  somewhat  similar  statute  was  declared  void,  in  State  v.  Beebe, 
6  Ind.  501. 

In  a  State  where  the  Constitution  prohibited  "public  emoluments  or  privileges 
but  in  consideration  of  public  service,"  a  grant  of  the  right  to  erect  a  public  toll- 
wharf  was  sustained.  Martin  v.  O'Brien,  34  Miss.  21. 

Imprisonment  for  Debt. — The  constitutional  prohibition  is  not  applicable  to  an 
imprisonment  for  contempt  in  not  complying  with  an  order  or  decree  for  the  pay- 
ment of  temporary  alimony.  Carlton  v.  Carlton,  44  Geo.  216.  Nor  is  it  violated  by 
an  order  of  the  chancellor  that  a  party  pay  over  money  in  his  hands  on  pain  of  im- 
prisonment. Remley  v.  De  Wall,  41  Geo.  466. 


GENERAL  OPERATION.  541 

to  eradicate  the  manorial  tenures  or  long  leases,  reserving  rents 
in  money,  produce,  or  services,  which,  in  the  language  of  Mr. 
Justice  Gridley,  "  experience  had  proved  to  be  prejudicial  to 
the  prosperity  and  interests  of  the  State,  as  a  question  of  polit- 
ical economy,"  prohibited  leases  or  grants  of  agricultural  land 
for  more  than  twelve  years,  in  which  any  rent  or  service  should 
be  reserved.  It  has  been  held,  that  this  provision  applies  only 
to  such  rents  and  services  as  are  certain,  periodical,  and  which 
issue  out  of  the  land,  and  not  to  covenants  for  the  performance 
of  duties  not  certain  nor  periodical,  nor  confined  to  the  use  of 
the  land  alone.  * 

The  Constitution  of  the  State  of  Indiana  declares  f  "  that 
all  trust  funds  held  by  the  State  shall  remain  inviolate,  and  be 
faithfully  applied  to  the  purposes  for  which  the  trust  was  cre- 
ated ; "  and  under  this  clause  it  has  been  held  that  a  law  divert- 
ing the  proceeds  of  the  sixteenth  section,  granted  by  Congress 
to  the  inhabitants  of  each  township  for  the  use  of  schools,  from 
the  use  of  schools  in  the  congressional  township  where  the  land 
was  situated  to  the  use  of  the  school  system  of  the  State  at 
large,  is  unconstitutional  and  void.  J 

In  terminating  the  examination,  necessarily  extremely  par- 
tial and  incomplete,  of  this  interesting  subject,  the  most  super- 
ficial observer  cannot  fail  to  be  struck  with  the  great  and 
growing  uniformity  in  the  fundamental  organization  of  so  many 
governments  which,  in  their  several  spheres,  are  absolutely  in- 
dependent. Provisions  inserted  in  the  revision  of  one  State 
Constitution  are  adopted  by  others  ;  the  judicial  interpretation 
adopted  by  the  courts  of  one  member  of  the  Union  is  followed 
by  its  sister  States ;  so  that  the  similarity  between  our  institu- 
tions is  daily  becoming  more  and  more  manifest.  In  regard  to 
the  division  and  general  arrangement  of  political  power,  the 
right  of  suffrage,  the  guaranties  of  private  property,  the  pro- 
tection of  private  rights — the  gradual  result  of  the  three  quar- 
ters of  a  century  which  have  elapsed  since  the  foundation  of 

*  Stephens  v.  Reynolds,  2  Seld.  454.    The    years,  reserving  any  rent,  or  service  of  any 
Constitution  of  Michigan  contains  a  similar     kind,  shall  be  valid." — Cons.  art.  xviii,  §  12. 
proviso:  "  No  lease  or  grant  hereafter  of  agri-  f  Cons.  art.  viii,  §  7. 

cultural  land,  for  a  longer  period  than  twelve          j  The  State  v.   Springfield  Township,  6 

Indiana,  83. 


542  GENERAL  OPERATION. 

our  institutions  was  laid,  aided  by  the  active  intercourse  and 
communication  of  our  citizens,  and  by  a  press  of  great  intelli- 
gence and  vigor,  has  been  to  bring  the  members  of  the  con- 
federacy to  a  similarity  of  condition  greater  than  any  other  age 
or  any  other  people  can  show.  So  marked  a  uniformity  of 
language,  laws,  and  institutions,  prevailing  through  territories 
so  vast  or  among  populations  so  numerous,  the  world  has  never 
before  beheld. 

On  one  subject  alone  does  any  considerable  diversity  of 
condition  or  difference  of  opinion  exist.  That  subject  is  rend- 
ered embarrassing  beyond  all  others  by  disparity  of  race,  and 
by  dissimilarity  of  climate  and  production.  Bat  our  past 
history  affords  us  reasonable  grounds  to  hope  and  to  believe 
that  if  the  question  be  approached  in  the  fraternal  spirit  which 
our  history  inculcates,  and  in  the  humane  temper  which  marks 
our  national  character,  a  solution  of  the  difficulties  attendant 
upon  it  will  be  found,  worthy  of  the  practical  sense  to  which 
we  lay  claim,  and  calculated  to  perpetuate  that  Union  on 
which  not  only  our  dearest  interests,  but  the  best  hopes  of 
humanity  depend. 


As  to  the  power  of  the  judiciary  to  investigate  the  correctness  of  legislative 
action  founded  on  a  question  of  fact,  the  following  case  may  be  noticed  :  The  Con- 
stitution of  New  York,  of  1846,  provided  that  every  county  should  be  entitled  to  a 
member  of  Assembly  ;  and  that  no  new  county  should  be  hereafter  created,  unless 
its  population  shall  entitle  it  to  a  member.  The  county  of  Schuyler  was  created  by 
laws  of  1854,  c.  386.  The  question  was,  whether  the  Legislature,  in  determining  the 
question  of  population,  was  confined  to  the  decennial  State  census,  taken  in  1845, 
or  whether  its  own  decision  on  the  point  was  to  be  considered  conclusive.  De 
Camp  v.  Eveland,  19  Barb.  81. 

A  repealing  clause  in  an  unconstitutional  statute,  declaring  that  all  laws  contra- 
vening the  provisions  of  this  act  be,  and  the  same  are  hereby,  repealed,  does  not 
affect  the  previous  laws.  Tims  v.  The  State,  26  Ala.  165. 

Where  an  act  is  void  because  unconstitutional,  an  amendatory  act  is  of  no  effect 
to  give  it  validity.  Bradley  v.  Baxter,  15  Barb.  131 ;  M'Spedon  &  Baker  v.  Stout, 
Sup.  Court,  N.  Y.,  by  Davies,  J.  (not  reported). 

Mr.  Rawle's  work  on  the  Constitution,  published  in  1825,  contains  the  following 
statement :  "  The  Provincial  Constitutions  of  America  were,  with  two  exceptions, 
modeled  with  some  conformity  to  the  English  theory ;  but  the  colonists  of  Rhode 
Island  and  Providence  Plantations  were  empowered  to  choose  all  their  officers — 
legislative,  executive,  and  judicial ;  and,  about  the  same  time,  a  similar  charter  was 
granted  to  Connecticut.  And  thus,  complains  Chalmers,  a  writer  devoted  to  regal 


HOFFMAN'S  LEGAL  OUTLINES.  543 

principles,  '  a  mere  democracy,  or  rule  of  the  people,  was  established.  Every  power, 
deliberative  and  active,  was  invested  in  the  freemen  or  their  delegates;  and  the 
supreme  executive  magistrate  of  the  empire,  by  an  inattention  which  does  little 
honor  to  the  statesmen  of  those  days,  was  wholly  excluded.'  He  expresses  his  own 
doubts  whether  the  king  had  a  right  to  grant  such  charters. 

"  But,  although  in  all  the  other  provinces  the  charters  were  originally  granted,  or 
subsequently  modified,  so  as  to  exclude  the  principle  of  representation  from  the 
executive  department,  these  two  provinces,  at  the  time  of  our  Revolution,  retained 
it  undiminished.  The  suggestion  of  the  full,  unqualified  extension  of  the  principle 
of  representation  may,  therefore,  be  justly  attributed  to  the  example  of  Rhode  Island 
and  Connecticut,  which,  when  converted  into  States,  found  it  unnecessary  to  alter 
the  nature  of  their  governments,  and  continued  the  same  forms  in  all  respects,  except 
the  nominal  recognition  of  the  king's  authority,  till  1818,  when  Connecticut  made 
some  minor  changes  and  adopted  a  formal  Constitution.  Rhode  Island,  however, 
is  still  satisfied  with  the  charter  of  Charles  II,  from  which  it  has  been  found  suffi- 
cient to  expunge  the  reservation  of  allegiance,  the  required  conformity  of  its  legis- 
lative acts  to  those  of  Great  Britain,  and  the  royal  right  to  a  certain  portion  of  gold 
and  silver  ores,  which,  happily  for  that  State,  have  never  been  found  in  it. — Rawle 
on  the  Constitution,  p.  9. 

"  Connecticut,"  says  the  Federalist,  Letter  38,  "  has  always  been  considered  as 
the  most  popular  State  in  the  Union." 

Mr.  Hoffman,  in  his  Legal  Outlines,  defines  the  Constitution  of  a  State  to  be 
"  The  fundamental  regulations  which  determine  the  manner  of  executing  the  public 
authority,  and  which  define  the  relation  between  the  political  body  and  its  mem- 
bers." Lect.  ix,  p.  365. 

Mr.  Hoffman's  work  was,  unhappily,  left  incomplete,  the  first  volume  only,  relat- 
ing to  the  elements  of  natural,  political,  and  feudal  jurisprudence,  was  published. 
The  second  and  third  volumes,  intended  to  treat  of  the  elements  of  municipal  law, 
never  appeared.  The  volume  which  we  have  is  the  production  of  an  accomplished 
lawyer  and  scholar,  full  of  the  marks  of  extensive  reading  and  accurate  reflection. 
The  seventh  chapter,  of  law  and  its  general  properties,  is  particularly  valuable. 


CHAPTER    XI. 

LIMITATIONS  IMPOSED  UPON  LEGISLATIVE  POWER  BY  THE  CONSTI- 
TUTION OF  THE  UNITED  STATES. 

Clauses  of  the  Federal  Constitution  which  operate  as  Checks  on  Legislative  Action. — 
General  Nature  of  the  Legislative  Power  of  the  Union. — General  Principles  of 
Constitutional  Construction  or  Interpretation. — Interpretation  and  Application 
of  Particular  Clauses.  —  Habeas  Corpus. — Bills  of  Attainder. — Ex  post  facto 
Laws. — Fugitives  from  Justice. — Fugitives  from  Labor. — Religious  Freedom. — 
Freedom  of  Speech  and  of  the  Press. — Search  Warrants  and  Seizures. — Only 
one  Trial  for  Offences. — Due  Process  of  Law. — Compensation  for  Private  Prop- 
erty taken  for  Public  Purposes. — Trial  by  Jury. — Excessive  Bail  and  Cruel  Pun- 
ishments.— The  Obligation  of  Contracts. — Vested  Rights. — Conclusion. 

Lsr  my  consideration  of  the  Constitution  of  the  United 
States,  with  reference  to  the  subject  of  this  work,  I  shall  pur- 
sue the  same  general  course  which  I  have  followed  in  regard  to 
the  Constitutions  of  the  several  States.  I  shall,  therefore,  not 
treat  of  the  organization  of  political  authority,  nor  of  the  distri- 
bution of  power  between  the  State  Legislatures  and  the  General 
Government,  resulting  from  the  provisions  of  the  Federal  char- 
ter. I  shall,  on  the  contrary,  confine  myself  mainly  to  the  con- 
sideration of  those  clauses  of  the  instrument  which  act  as 
limitations  on  the  action  either  of  Congress  or  of  the  Legisla- 
tures of  the  several  States,  in  regard  to  matters  of  private 
right. 

I  omit,  therefore,  as  falling  outside  of  the  scope  and  prov- 
ince of  this  work,  all  the  interesting  cases  growing  out  of  the 
clauses  of  the  Federal  Constitution  in  regard  to  the  judiciary, 
the  regulation  of  commerce,  emission  of  bills  of  credit,  the 
borrowing  of  money,  levying  of  taxes,  naturalization,  bank- 
ruptcy, coinage,  the  post-office,  patents,  copyrights,  and  the 
like.  These  belong,  strictly,  to  a  treatise  on  the  Constitution 
of  the  United  States,  a  subject  that  has  already  been  treated 
bv  a  hand  far  abler,  far  more  familiar  with  the  theme,  but 


CONSTITUTIONAL    PROVISIONS.  515 

which  now,  unhappily,  rests  from  its  useful  and  incessant 
labors.* 

My  chief  object,  as  I  have  said,  being  to  treat  of  written 
law  as  settling  and  declaring  private  rights  and  duties,  I  shall, 
after  an  examination  of  the  general  principles  of  interpretation 
applicable  to  the  Constitution  of  the  United  States,  limit  my- 
self almost  exclusively  to  a  consideration  of  those  clauses  which 
have  no  direct  connection  with  the  organization  or  distribution 
of  political  power,  but  are  intended,  by  limiting  legislative 
supremacy,  to  operate  as  definitions  of  private  duty  or  guar- 
anties  of  private  right — to  those  clauses,  by  virtue  of  which  it 
has  been  said  that  the  Constitution  of  the  United  States  con- 
tains what  may  be  deemed  a  Bill  of  Rights  for  the  people  of 
each  State ;  f  and  in  regard  even  to  these,  I  shall  discuss  them 
in  a  brief  and  summary  way,  for  the  same  reason  that  they  may 
be  found  ably  and  amply  discussed  elsewhere. 

The  sections  of  the  Constitution  of  the  United  States  con- 
taining the  clauses  designed  to  perform  the  functions  to  which 
I  have  referred,  will  be  found  to  be  the  following  : 

Article  I,  Section  9. 

(2.)  The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  suspended,  unless 
when,  in  cases  of  rebellion  or  invasion,  the  public  safety  may  require  it. 
(3.)  No  bill  of  attainder,  or  ex  post  facto  law,  shall  be  passed. 

Section  10. 

(1.)  No  State  shall  enter  into  any  treaty,  alliance,  or  confederation,  grant 
letters  of  marque  and  reprisal,  coin  money,  emit  bills  of  credit,  make  anything 
but  gold  and  silver  coin  a  tender  in  payment  of  debts,  pass  any  bill  of  attainder, 
ex  post  facto  law,  or  law  impairing  the  obligation  of  contracts,  or  grant  any  title 
of  nobility. 

Article  III,  Section  2,  §  3. 

The  trial  of  all  crimes,  except  in  cases  of  impeachment,  shall  be  by  jury  ; 
and  such  trial  shall  be  held  in  the  State  where  the  said  crimes  shall  have  been 

*  In  addition  to  the  great  work  of  Mr.  There  is  no  better  or  more  pleasing  compend 
Justice  Story,  and  the  volumes  of  Mr.  Rawle  for  popular  use  or  elementary  instruction  than 
and  Mr.  Sergeant,  the  student  of  constitu-  the  Constitutional  Jurisprudence  of  the  Hon. 
tional  law  who  wishes  haurire  forties  will  re-  Win.  Alexander  Drer,  2d  edition,  1856. 
cur  to  the  Madison  Papers  and  the  Federalist,  f  Fletcher  v.  Peck,  6  Cranch,  138.  "In 
Mr.  Tucker's  Blackstone,  the  writings  of  Jeffer-  like  manner,"  says  the  Federalist,  "the  pro- 
son  and  Hamilton  passim,  and  to  our  truly  posed  Constitution,  if  adopted,  will  be  the  Bill 
national  work,  the  Commentaries  of  Mr.  Chan-  of  Rights  of  the  Union."  (Letter  84).  That 
cellor  Kent.  In  recent  days,  the  speeches  it  did  not  contain  a  Bill  of  Kights  in  form 
and  writings  of  Mr.  Webster  and  of  Mr.  Cal-  was,  as  is  well  known,  one  of  the  chief  argu- 
houn,  great  rival  chiefs  of  widely  adverse  ments  used  against  its  adoption.— Story,  Com, 
schools,  furnish  most  important  instruction.  §  1858. 
35 


546  CONSTITUTIONAL   PROVISIONS. 

committed  ;  but  when  not  committed  within  any  State,  the  trial  shall  be  at  such 
place  or  places  as  the  Congress  may,  by  law,  have  directed. 

Section  3. 

(1.)  Treason  against  the  United  States  shall  consist  only  in  levying  war 
against  them,  or  in  adhering  to  their  enemies,  giving  them  aid  and  comfort.  No 
person  shall  be  convicted  of  treason  unless  on  the  testimony  of  two  witnesses  to 
the  same  overt  act,  or  on  confession  in  open  court. 

(2.)  The  Congress  shall  have  power  to  declare  the  punishment  of  treason  ; 
but  no  attainder  of  treason  shall  work  corruption  of  blood,  or  forfeiture,  except 
•during  the  life  of  the  person  attainted. 

Article  IV. 

Full  faith  and  credit  shall  be  given  in  each  State  to  the  public  acts,  records, 
and  judicial  proceedings  of  any  other  State;  and  the  Congress  may, by  general 
laws,  prescribe  the  manner  in  which  such  acts,  records,  and  proceedings  shall  be 
proved,  and  the  effect  thereof. 

Section  2. 

(1.)  The  citizens  of  each  State  shall  be  entitled  to  all  privileges  and  immu- 
nities of  citizens  in  the  several  States. 

(2.)  A  person  charged  in  any  State  with  treason,  felony,  or  other  crime,  who 
shall  flee  from  justice  and  be  found  in  another  State,  shall,  on  demand  of  the 
executive  authority  of  the  State  from  which  he  fled,  be  delivered  up  to  be  re- 
moved to  the  State  having  jurisdiction  of  the  crime. 

(3.)  No  person  held  to  service  or  labor  in  one  State,  under  the  laws  thereof, 
escaping  into  another,  shall  in  consequence  of  any  law  or  regulation  therein,  be 
discharged  from  such  service  or  labor,  but  shall  be  delivered  up  on  claim  of  the 
party  to  whom  such  service  or  labor  may  be  due. 

Article  VI. 

(3.)  The  senators  and  representatives  before  mentioned,  and  the  members 
of  the  several  State  Legislatures,  and  all  executive  and  judicial  officers,  both  of 
the  United  States  and  of  the  several  States,  shall  be  bound  by  oath  or  affirma- 
tion to  support  this  Constitution  ;  but  no  religious  test  shall  ever  be  required  as 
a  qualification  to  any  office  or  public  trust  under  the  United  States. 

AMENDMENTS. — Article  I. 

Congress  shall  make  no  law  respecting  an  establishment  of  religion,  or  prohib- 
iting the  free  exercise  thereof,  or  abridging  the  freedom  of  speech  or  of  the  press, 
or  the  right  of  the  people  peaceably  to  assemble  and  to  petition  the  Government 
for  a  redress  of  grievances. 

Article  II. 

•  A  well-regulated  militia  being  necessary  for  .the  security  of  a  free  State,  the 
right  of  the  people  to  keep  and  bear  arms  shall  not  be  infringed. 

Article  III. 

No  soldier  shall,  in  time  of  peace,  be  quartered  in  any  house  without  the 
consent  of  the  owner ;  nor  in  time  of  war,  but  in  a  manner  to  be  prescribed  by 
law. 


CONSTITUTIONAL  PROVISIONS.  547 

Article  IV. 

The  right  of  the  people  to  be  secure  in  their  persons,  houses,  papers,  and 
•effects,  against  unreasonable  searches  and  seizures,  shall  not  be  violated ;  and 
no  warrants  shall  issue  but  upon  probable  cause,'  supported  by  oath  or  affirma- 
tion, and  particularly  describing  the  place  to  be  searched,  and  the  persons  or 
things  to  be  seized. 

Article  V. 

No  person  shall  be  held  to  answer  for  a  capital  or  otherwise  infamous  crime, 
unless  on  a  presentment  or  indictment  of  a  grand  jury,  (a)  except  in  cases  aris- 
ing in  the  land  or  naval  forces,  or  in  the  militia  when  in  actual  service,  in  time 
of  war  or  public  danger;  nor  shall  any  person  be  subject,  for  the  same  offence, 
to  be  twice  put  in  jeopardy  of  life  or  limb,  nor  shall  be  compelled  in  any  crim. 
inal  case,  to  be  a  witness  against  himself,  nor  be  deprived  of  life,  liberty,  or 
property,  without  due  process  of  law  ;  nor  shall  private  property  be  taken  for 
public  use  without  just  compensation. 

Article  VI. 

In  all  criminal  prosecutions,  the  accused  shall  enjoy. the  right  to  a  speedy 
and  public  trial  by  an  impartial  jury  of  the  State  and  district  wherein  the 
crime  shall  have  been  committed,  which  district  shall  have  been  previously 

(«)  Indictment. — For  cases  under  similar  provisions  in  State  Constitutions,  describ- 
ing the  particularity  and  form  requisite  in  setting  out  the  offence,  see  Morton  v.  People, 
47  111.  468 ;  State  v.  Corson,  59  Me.  137 ;  Hewitt  v.  State,  25  Tex.  722 ;  Wolf  v.  State,  19 
Ohio,  K  S.  248 ;  Turpin  v.  State,  19  Ohio,  N.  S.  540.  The  Legislature  may  limit  the  time 
and  manner  of  objections  to  indictment.  Commonwealth  v.  Walton,  1 1  Allen,  238 ;  Com- 
monwealth v.  Greener,  11  Allen,  241.  And  may  provide  that  upon  a  plea  of  misnomer, 
the  proceedings  shall  go  on  against  the  accused  under  his  right  name  as  pleaded. 
Lagare  v.  State,  19  Ohio,  N.  S.  43.  But  an  indictment  amended  by  adding  a  venue 
is  not,  it  seems,  the  indictment  of  a  grand  jury.  State  v.  Chamberlain,  6  Nev.  257. 

For  cases  where  indictments  were  held  not  sufficient  within  the  constitutional 
provision,  see  Murphy  v.  State,  28  Miss.  637;  Norris  v.  State,  33  Miss.  373;  Lemons 
v.  State,  4  W.  Va.  755.  The  Legislature  cannot  make  valid  a  complaint  in  which 
the  accusation  is  not  "formally,  fully,  and  precisely  set  forth."  State  v.  Lerned,  47 
Me.  426. 

The  provisions  of  the  United  States  Constitution  as  to  indictment  by  a  grand 
jury  are  not  addressed  to  the  States,  and  do  not  bind  them.  Jane  v.  Commonwealth, 
3  Mete.  (Ky.)  18.  The  same  provisions  in  the  State  Constitutions  do  not  restrict  the 
Legislatures  in  prescribing  forms  of  indictment,  providing  a  grand  jury  passes  upon 
the  complaint  and  assents  to  the  prosecution.  State  v.  Millain,  3  Nev.  409. 

When  there  are  degrees  of  murder  differently  punished,  a  statute  is  not  uncon- 
stitutional which  authorizes  the  indictment  to  charge  murder  simply,  without 
specifying  the  degree.  Commonwealth  v.  Gardner,  11  Gray,  438.  And  a  statute  is 
equally  valid  which  authorizes,  upon  indictments  for  felony,  an  acquittal  of  part  of 
the  offence,  and  a  conviction  for  the. residue,  if  such  residue  is  substantially  charged 
in  the  indictment.  Commonwealth  v.  Long,  10  Gray,  11.  As  to  the  constitutionality 
of  a  statute  of  South  Carolina,  dispensing  with  the  grand  jury  in  the  district  courts, 
see  State  v.  Starling,  15  Rich.  Law,  120. 


548  CONSTITUTIONAL   PROVISIONS. 

ascertained  by  law,  and  to  be  informed  of  the  nature  and  cause  of  the  accusa- 
tion, to  be  confronted  with  the  witnesses  against  him,  (a)  to  have  compulsory 
process  for  obtaining  witnesses  in  his  favor,  and  to  have  the  assistance  of  counsel 
for  his  defence. 

Article  VII. 

In  suits  at  common  law,  where  the  value  in  controversy  shall  exceed  twenty 
dollars,  the  right  of  trial  by  jury  shall  be  preserved,  and  no  fact  tried  by  a  jury- 
shall  be  otherwise  re-examined,  in  any  court  of  the  United  States,  than  accord- 
ing to  the  rules  of  the  common  law. 

Article  VIII. 

Excessive  bail  shall  not  be  required,  nor  excessive  fines  imposed,  nor  cruel 
and  unusual  punishments  inflicted. 

Article  X. 

The  powers  not  delegated  to  the  United  States  by  the  Constitution,  nor 
prohibited  by  it  to  the  States,  are  reserved  to  the  States  respectively,  or  to 
the  people. 

Before  proceeding  to  discuss  the  interpretation  of  these 
clauses  in  detail,  it  is  desirable  to  have  a  general  idea  of  the 
nature  of  the  legislative  power  of  the  Union,  as  well  as  of  the 
leading  principles  of  construction  applicable  to  the  Constitution 
of  the  United  States.  Kules  of  interpretation  vary  with  the 
instrument  to  be  expounded.  A  statute  is  not  controlled  by 
the  same  maxims  as  those  applicable  to  State  Constitutions ; 
and  State  Constitutions  are  subjected,  in  some  respects,  to 
different  principles  of  construction  from  those  which  are  held 
proper  in  regard  to  the  Constitution  of  the  United  States.* 

*  Mr.  Justice  Story,  in  the  fifth  chapter  I.  That   it  is  to  be  construed  according 

of  the  third  book  of  has  Commentaries  on  the  to  the  sense  of  the  terms  and  the  intention  of 

Constitution,  states  the  rules  of  interpretation  the  parties. 

applicable  to  the  Constitution  of  the  United  II.  We    are   to   consider  its  nature   and 

States,  to  be :  objects,  its  scope  and  design  as  apparent  from 

(a)  Con/renting  of  Witnesses. — Under  similar  provisions  in  the  State  Constitutions 
the  following  points  have  been  decided:  The  guaranty  is  not  violated  by  admitting 
declarations  made  in  extremis.  Commonwealth  v.  Carey,  12  Cush.  246  ;  People  v.  Glum, 
10  Cal.  32  ;  Walston  v.  Commonwealth,  16  B.  Mon.  15  ;  State  v.  Nash,  7  Clarke  (la.), 
347 ;  Bobbins  v.  State,  8  Ohio,  N.  S.  131 ;  Miller  v.  State,  25  Wise.  384.  Nor  by  ad- 
mitting the  testimony  given  at  a  former  trial  by  a  witness  since  deceased.  Summons 
v.  State,  5  Ohio,  N.  S.  325.  Nor  by  admitting  a  deposition  taken  by  the  committing 
magistrate  in  the  presence  of  the  accused,  the  deponent  being  since  dead.  State  v. 
Harman,  27  Mo.  120.  But  it  seems  a  protest  of  a  notary  should  not  be  admitted  as 
evidence  of  no  funds  in  bank.  State  v.  Reidel,  £6  Ind.  430. 

That  the  constitutional  guaranty  does  not  apply  to  evidence  which  is  in  its  nature 
essentially  documentary,  especially  wiien  the  fact  to  be  proved  is  collateral  only,  see 
People  v.  Jones,  24  Mich.  215. 


LEGISLATIVE  POWER   OF   THE   UNION. 


549 


The  great  political  idea,  if  it  may  be  so  called,  on  this 
subject  of  the  Federal  Charter,  is  the  one  expressed  in  the 
tenth  amendment  above  cited,  and  repeatedly  in  various  ways 
affirmed,*  that  as  to  the  general  outline  of  the  instrument,  and 
the  Government  created  by  it,  the  Constitution  of  the  United 


the  structure  of  the  instrument  viewed  as  a 
whole,  and  also  viewed  in  its  component  parts, 
taking  into  view  the  antecedent  situation  of 
the  country  and  its  institutions,  the  existence 
and  operations  of  the  State  Governments,  the 
powers  and  operations  of  the  confederation, 
contemporary  history,  contemporary  inter- 
pretation, and  practical  exposition. 

III.  It  is  to  receive   a  reasonable  inter- 
pretation of  its  language  and  its  powers,  not 
straining  its  words  beyond  their  common  and 
natural   sense,  but  giving  their  exposition  a 
fair  and  just  latitude. 

IV.  Where  a  power  is  granted  in  general 
terms,  the  power  is  to  be  construed  as  co- 
extensive  with  the  terms,  unless  some  clear 
restriction   upon   it   is   deducible   from    the 
context. 

V.  A  power  given  in  general  terms  is  not 
to  be  restricted  to  particular  cases,  merely 
because  it  may  be  susceptible  of  abuse. 

VI.  A  given  power  is  not  to  be  extended 
by  construction  beyond  the  fair  scope  of  its 
terms,  merely  because   the  restriction   is  in- 
convenient, impolitic,  or  even  mischievous. 

VII.  No  construction  of  a  given  power  is 
to  be  allowed,  which  plainly  defeats  or  impairs 
its  avowed  objects. 

VIII.  Where   a  power  is  remedial  in  its 
nature,  there  is  much  reason  to  contend  that 
it  ought  to  be  construed  liberally. 

IX.  In  the  interpretation  of  a  power,  all 
the  ordinary  and  appropriate  means  to  execute 
it,   are   to  be   deemed  a  part  of  the  power 
itself. 

X.  Powers  may  be  implied. 

XI.  As  between   the  States  and  General 
Government,  some  of  the  powers  conferred  on 
the  latter  are  concurrent,  and  some  exclusive. 

XII.  The  maxims  which  have  found  their 
way   not   only  into  judicial  discussions  but 
into  the  business  of  common  life,  as  founded 
in  common  sense  and  common   convenience, 
are    applicable   to   the    construction  of  the 
Constitution. 

XIII.  The    rational    import  of    a    single 
clause  is  not  to  be  narrowed  so  as  to  exclude 
implied  powers  resulting  from  its  character, 
simply   because  there  is  another  clause  enu- 
merating certain  powers  which  might  other- 
wise be   deemed  implied  powers  within  its 
scope. 

XIV.  Every  word  employed  in  the   Con- 
stitution  is   to  be   expounded   in  its   plain, 
obvious,  and  common  sense,  unless  the  context 
furnishes  some  ground  to  control,  qualify,  or 
enlarge  it. 


XV.  Where  words  have  different  mean- 
ings, resort  must  be  had  to  the  context  to 
determine  the  construction. 

XVI.  Where   technical  words  are  used, 
the  technical  meaning  must  be  given  them. 

XVII.  The  same  word  is  not  necessarily 
to  be  construed  in  the  same  sense  wherever 
it  occurs  in  the  same  instrument. 

XVIII.  A  Constitution  does  not,  and  can- 
not  from   its   nature,   depend   in   any  great 
degree  upon  mere  verbal  criticism,  or  upon 
the  import  of  single  words. 

Some  of  these  rules  are,  it  will  be  ob- 
served, principles  of  what  may  be  called 
political  construction;  others,  very  sound 
and  sagacious  maxims  applicable  to  all  inter- 
pretation, and  especially  to  that  of  constitu- 
tional law. 

The  learned  author  also  elaborately  dis- 
cusses the  subject  of  the  formation  of  the 
Government,  whether  created  by  the  States 
as  such,  or  by  the  people  directly,  as  well  as 
the  general  question,  whether  the  Constitution 
is  to  be  strictly  construed.  These  questions 
are  of  the  deepest  interest,  but  they  relate 
more  particular^  to  the  distribution  of  polit- 
ical power;  and  I  therefore  content  myself 
here  with  a  bare  reference  to  them. 

A  Constitution,  from  its  nature,  deals  in 
generals,  not  in  details.  Its  framers  cannot 
perceive  minute  distinctions  which  arise  in 
the  progress  of  the  nation;  and  therefore 
confine  it  to  broad  and  general  principles. 
Bank  U.  S.  v.  Deveaux,  5  Cranch,  87,  a  case 
as  to  the  citizenship  of  corporations  aggregate. 

*  The  Federal  Government  is  one  of  dele- 
gated powers.  All  powers  not  delegated  to 
it,  or  inhibited  to  the  States,  are  reserved  to 
the  States  or  the  people.  Briscoe  v.  Bank  of 
Commonwealth  of  Kentucky,  11  Peters,  257; 
see  this  case  in  regard  to  the  clause  prohibit- 
ing the  States  to  issue  bills  of  credit. 

"  A  different  rule  obtains  in  interpret- 
ing the  powers  in  the  Constitutions  of  the 
United  States  and  the  States.  In  ascertain- 
ing the  powers  of  the  former,  we  examine  to 
see  what  powers  are  expressly  granted  or  are 
necessarily  implied  for  their  exercise.  In 
the  latter  we  only  examine  to  see  what  are 
denied  by  the  Federal  and  State  Constitutions ; 
and  my  view  of  the  law-making  power  of 
these  State  Governments  is,  that  they  can  do 
any  legislative  act  not  prohibited  by  the 
Constitution ;  and  without  and  beyond  these 
limitations  and  restrictions,  they  are  aa  ab- 
solute, omnipotent,  and  uncontrollable  as 
Parliament."  Mason  v.  Waite,4  Scammon,  134. 


550  LEGISLATIVE   POWER   OF  THE   UNION. 

States  is  a  grant  and  not  a  limitation  of  power.  Congress  can 
exercise  no  powers  except  •  those  expressly  delegated.  Of 
course,  however,  this  idea  does  not  apply  to  the  express  pro- 
hibitions contained  in  the  instrument,  whether  imposed  upon 
the  States  or  on  the  General  Government.  In  regard  to  these, 
the  Constitution  of  the  United  States,  like  those  of  the  several 
members  of  the  confederacy,  is  a  limitation  on  legislative  power. 

This  broad  line  of  distinction  between  the  powers  of  the 
Federal  Government  and  that  of  the  States,  leaves  little  room 
in  regard  to  the  Government  of  the  Union,  for  the  discussion 
of  some  of  the  general  questions  in  regard  to  the  exercise  of 
the  law-making  authority,  which  we  have  elsewhere  con- 
sidered. But  the  Federal  Constitution  intends  to  preserve 
the  same  lines  of  demarkation  between  the  executive,  the 
legislative,  and  the  judicial  powers,  as  those  wrhich  the  States 
have  described;  and  this  separation  has  given  rise  to  a  dis- 
cussion in  regard  to  the  delegation  of  legislative  power  by 
Congress,  analogous  to  that  we  have  already  considered.  The 
Government  of  the  United  States  have  by  various  acts,  adopted 
the  legislation  of  the  respective  States  in  regard  to  writs, 
process,  imprisonment  for  debt,  and  other  matters ;  *  and  in  so 
far  as  this  adoption  is  a  mere  application  of  rules .  already 
known  and  in  force,  to  questions  arising  under  the  jurisdiction 
of  Congress,  it  appears  to  be  unobjectionable ;  but  it  has  been 
intimated  that  Congress  could  not  adopt  prospectively  future 
acts  of  State  legislation  on  any  given  subject,  upon  the  ground 
that  it  would  be  a  delegation  of  legislative  power,  f 

We  have  already  considered  the  rules  which  govern  the 
adoption  by  the  Federal  tribunals  of  the  decisions  of  the  State 
courts,  in  relation  to  their  Constitutions  and  their  local  law.  J 
In  deciding,  however,  on  questions  which  are  not  questions  of 
mere  local  municipal  law,  but  arise  under  the  law  merchant, 
the  Supreme  Court  pronounces  its  own  judgment,  and  does  not 
accept  the  rules  of  the  State  courts  as  authority.  | 

*  Wayman   v.   Southard,   10  Wheat.   4;  p.  495;  Cooley  v.  Board  of  Wardens  of  Phila- 

Bank  of  the  U.  S.  v.  Halstead,  10  Wheat.  51  ;  delphia,  12  How.  299. 
Beers  v.  Haughton,  9  Peters,  329.  \  Webster  v.   Cooper,  14  Howard,   488  ; 

f  U.  States  v.   Knight,  3  Sumner,  369;  Greene  v.  James,  2  Curtis,  187;  ante,  p.  369. 
In  the  Matter  of  Watson  Freeman,  2  Curtis,  ||   Swift  v.  Tyson,  16  Peters,  1 ;  Carpenter 


GENERAL    RULES   OF  CONSTRUCTION.  551 

Having  thus  glanced  at  the  general  notions  of  the  legislative 
power  of  the  Union,  we  proceed  to  consider  the  leading  rules  of 
interpretation  applied  to  the  Constitution  of  the  United  States. 

The  political  rules  of  construction  in  regard  to  the  Federal 
Charter   have  been  stated  as  follows  by  Mars-hall,  C.  J.,  who,  - 
assisted  by  a  bar  and  a  bench  of  unsurpassed  ability,   may 
fairly  claim  the  title  of  expounder  of  the  instrument. 

The  Government,  then,  of  the  United  States  can  claim  no  powers  which  are 
not  granted  to  it  by  the  Constitution  ;  and  the  powers  actually  granted  must 
be  such  as  are  expressly  given  or  by  necessary  implication.  On  the  other 
hand,  this  instrument,  like  every  other  grant,  is  to  have  a  reasonable  construc- 
tion according  to  the  import  of  its  terms  ;  and  where  a  power  is  expressly 
given  in  general  terms,  it  is  not  to  be  restrained  to  particular  cases,  unless  that 
construction  grow  out  of  the  context  expressly,  or  by  necessary  implication. 
The  words  are  to  be  taken  in  their  natural  and  obvious  sense,  and  not  in  a  sense, 
unreasonably  restricted  or  enlarged. 

The  Constitution  unavoidably  deals  in  general  language.  It  did  not  suit, 
the  purposes  of  the  people,  in  framing  this  great  charter  of  our  liberties,  to  pro- 
vide for  minute  specifications  of  its  powers,  or  to  declare  the  means  by  which 
those  powers  should  be  carried  into  execution.  It  was  foreseen  that  this  would 
be  a  perilous  and  difficult,  if  not  an  impracticable  task.  The  instrument  was 
not  intended  to  provide  merely  for  the  exigencies  of  a  few  years,  but  was  to 
endure  through  a  long  lapse  of  ages,  the  events  of  which  were  locked  up  in  the 
inscrutable  purposes  of  Providence.  It  could  not  be  foreseen  what  new 
changes  and  modifications  of  power  might  be  indispensable  to  effectuate  the- 
general  objects  of  the  charter;  and  restrictions  and  specifications  which  at  the 
present  time  might  seem  salutary,  might  in  the  end  prove  the  overthrow  of  the 
system  itself.  Hence,  its  powers  are  expressed  in  general  terms,  leaving  to  the 
Legislature,  from  time  to  time,  to  adopt  its  own  means  to  effectuate  legitimate 
objects,  and  to  mold  and  model  the  exercise  of  its  powers  as  its  own  wisdom 
and  the  public  interest  should  require.* 

And  again,  the  same  eminent  man  has  said, — 

To  say,  that  the  intention  of  the  instrument  must  prevail ;  that  this  inten- 
tion must  be  collected  from  its  words ;  that  its  words  are  to  be  understood  in 
that  sense  in  which  they  are  generally  used  by  those  for  whom  the  instrument 
was  intended  ;  that  its  provisions  are  neither  to  be  restricted  into  insignificance, 
nor  extended  to  objects  not  comprehended  in  them,  nor  contemplated  by  its 
framers, — is  to  repeat  what  has  been  already  said  more  at  large,  and  is  all  that 
can  be  necessary. \ 

v.  Prov.  W.  Ins.  Co.  16  Peters,  495 ;  Foxcroft          *  Martin  v.   Hunter's   Lessee,  1  Wheat. 
v.  Mallett,  4  How.  377 ;  The  Gloucester  Ins.     305-326. 

Co.  v.  Younger,  2  Curtis,  338.  f  Marshall,  C.  J.,  in  Ogden  v.  Saunders, 

12  Wheat.  213-332. 


552  CONTEMPORANEOUS  EXPOSITION. 

I  proceed  now  to  state  the  rules  of  construction  not  of  a 
political  nature,  which  are  applicable  to  the  instrument. 

The  Unconstitutionally  must  be  Clear. — It  has  been  re- 
peatedly held,  that  to  warrant  the  courts  in  setting  aside  a  law 
as  unconstitutional,  the  case  must  be  so  clear  that  no  reason- 
able doubt  can  be  said  to  exist.  The  Supreme  Court  has  said, — 

The  question  whether  a  la\v  be  void  for  its  repugnancy  to  the  Constitution, 
is  at  all  times  a  question  of  much  delicacy,  which  ought  seldom  or  never  to  be 
decided  in  the  affirmative  in  a  doubtful  case.  The  Court,  when  impelled  by 
duty  to  render  such  a  judgment,  would  be  unworthy  of  its  station  could  it  be 
unmindful  of  the  solemn  obligation  which  that  station  imposes.  But  it  is  not 
on  slight  implication  and  vague  conjecture,  that  the  Legislature  is  to  be  pro- 
nounced to  have  transcended  its  powers,  and  its  acts  to  be  considered  void. 
The  opposition  between  the  Constitution  and  the  law  should  be  such  that  the 
judge  feels  a  clear  and  strong  conviction  of  their  incompatibility  with  each 
other.  If  such  be  the  rule  by  which  the  examination  of  this  case  is  to  be  gov- 
erned and  tried  (and  that  it  is,  no  one  can  doubt),  I  am  certainly  not  prepared 
to  say  that  it  is  not,  at  least,  a  doubtful  case,  or  that  1  feel  a  clear  conviction 
that  the  case  in  question  is  incompatible  with  the  Constitution  of  the  United 
States.* 

Contemporaneous  Exposition. — It  is  well  settled  that  aid,  in 
regard  to  the  construction  of  the  Constitution  of  the  United 
States,  may  be  derived  from  contemporaneous  exposition  and 
legislative  exposition ;  f  but  this  cannot  be  carried  so  far  as 
to  permit  usage  to  override  the  express  terms  of  the  instru- 
ment ;  and  Mr.  Justice  Story  has  said  that  contemporary  inter- 
pretation must  be  resorted  to  with  much  qualification  and  re- 
serve. J 

Extrinsic  Facts  not  Admitted  to  Contradict  the  Words  of 
the  Instrument. — The  general  principle  on  which  we  have  here- 

*  Fletcher  v.  Peck,  6  Cranch,   128;  see  pronounce  upon  the  conformity  of  the  acts  of 

also,  to  same  point,  U.  S.  v.   Wonson,  1  Gal-  the  delegated  authority  to  the  fundamental 

lison,  pp.  4  and  18;  U.  S.  Bank  v.  Halstead,  law.      This  court  is  that  depositary,  and  I 

10    Wheat,    p.    53;    Parsons   v.    Bedford,  3  know  not  of  any  better.     But  the  success  of 

Peters,   433,    448;    Ogden   v.    Saunders,    12  this  experiment,  so  interesting  to  all  that  is 

"Wheat.  294.     In  Green  v.  Biddle,  Mr.  Clay,  dear  to  the  interests  of  human  nature,  de- 

arguendo,  said,  "  The  court  will  exercise  its  pends  upon  the   prudence  with  which   this 

power  with    the    most    deliberate    caution,  high  trust  is  executed."     8  Wheat.  48. 
This  court  is  invested  with  the  most  import-  f  Johnson,  J.,  in  Ogden  v.   Saunders,  12 

ant  trust  that  was  ever  possessed  by  any  tri-  Wheat,  p.  290;  Stuart  v.  Laird,   1  Cranch, 

bunal  for  the  benefit  of  mankind.     The  polit-  299 ;  Martin  v.   Hunter's   Lessee,   1   Wheat, 

ical   problem   is   to   be   solved  in   America,  304;  Cohens  v.  Virginia,  6  Wheat.  264,418 

whether  written  Constitutions  of  government  to  421. 
can  exist.     They  certainly  canuot  exist  with-  \  Com.  on  Con.  §  406. 

out  a  depositary  somewhere  of  the  power  to 


TRANSPOSITION  OF  CLAUSES.  553 

tofore  insisted,  that  the  meaning  of  a  written  law  is  to  be  found 
in  its  terms,  and  that  we  are  not  at  liberty  to  resort  to  extrinsic 
facts  and  circumstances  to  ascertain  what  the  framers  might 
have  intended,  has  frequently  been  declared  to  apply  to  the 
Constitution  of  the  United  States.  "  It  is  well  settled  that  the 
spirit  of  a  Constitution  is  to  be  respected  no  less  than  its  let- 
ter; yet  that  spirit  is  to  be  collected  chiefly  from  its  words, 
and  neither  the  practice  of  legislative  bodies  nor  other  extrin- 
sic circumstances,  can  control  its  clear  language."  Such  was 
the  language  of  Marshall,  C.  J.,  in  answer  to  the  objection  that 
the  State  insolvent  laws  did  not  contravene  the  prohibition 
upon  laws  impairing  the  obligation  of  contracts,  because  they 
were  supported  by  the  unbroken  practice  of  the  State  Legisla- 
tures for  thirty  years ;  and  he  proceeded  to  say, — 

It  would  be  dangerous  in  the  extreme  to  infer  from  extrinsic  circumstances, 
that  a  case  for  which  the  words  of  an  instrument  expressly  provide,  shall  be 
exempted  from  its  operation.  Where  words  conflict  with  each  other,  where 
the  different  clauses  of  an  instrument  bear  upon  each  other,  and  would  be  in- 
consistent unless  the  natural  and  common  import  of  words  be  varied,  construc- 
tion becomes  necessary,  and  a  departure  from  the  obvious  meaning  of  words  is 
justifiable.  But  if  in  any  case  the  plain  meaning  of  a  provision,  not  contra- 
dicted by  any  other  provision  in  the  same  instrument,  is  to  be  disregarded  be- 
cause we  believe  the  framers  of  that  instrument  could  not  intend  what  they 
say,  it  must  be  one  in  which  the  absurdity  and  injustice  of  applying  the  pro- 
vision to  the  case  would  be  so  monstrous  that  all  mankind  would,  without 
hesitation,  unite  in  rejecting  the  application.* 

Words  to  be  Taken  in  their  Natural  Sense. — Chief  Justice 
Marshall  has  said,  "As  men  whose  intentions  require  no  con- 
cealment generally  employ  the  words  which  most  directly  and 
aptly  express  the  ideas  they  intend  to  convey,  the  patriots  who 
framed  our  Constitution,  and  the  people  who  adopted  it,  must 
be  understood  to  have  employed  words  in  their  natural  sense, 
and  to  have  intended  what  they  have  said."  f 

Transposition  of  Clauses. — In  regard  to  the  transposition  of 
sentences  in  order  to  arrive  at  the  construction  of  a  constitu- 
tional provision,  Mr.  Justice  Washington  has  used  this  sensible 
language : 

o       o 

*  Sturgea   v.   Crowninshielcl,   4    Wheat.          f  Gibbons  v.  Ogden,  9  Wheat.  188,  per 
202,  203.  Marshall,  C.  J. 


554  EFFECTS   OF  UNCONSTITUTIONALLY. 

In  the  construction  of  this  clause  of  the  tenth  section  of  the  Constitution, 
one  of  the  counsel  for  the  defendant  supposed  himself  at  liberty  so  to  transpose 
the  provisions  contained  in  it  as  to  place  the  prohibition  to  pass  laws  impairing 
the  obligation  of  contracts,  in  juxtaposition  with  the  other  prohibition  to  pass 
laws  making  any  thing  but  gold  and  silver  coin  a  tender  in  payment  of  debts, 
inasmuch  as  the  two  provisions  relate  to  the  subject  of  contracts.  That  the 
derangement  of  the  words  and  even  sentences  of  a  law  may  sometimes  be  toler- 
ated in  order  to  arrive  at  the  apparent  meaning  of  the  Legislature,  to  be  gath- 
ered from  other  parts  or  from  the  entire  scope  of  the  law,  I  shall  not  deny. 
But  I  should  deem  it  a  very  hazardous  rule  to  adopt  in  the  construction  of  an 
instrument  so  maturely  considered  as  this  Constitution  was  by  the  enlightened 
statesmen  who  framed  it,  and  so  severely  examined  and  criticised  by  its  oppo- 
nents in  the  numerous  State  conventions  which  finally  adopted  it.* 

Reference  to  Clauses  struck  out. — It  lias  been  said  by  the 
Supreme  Court,  that  although  a  clause  may  have  been  struck 
from  the  Constitution  by  amendment,  it  may  still  be  referred 
to  as  an  aid  in  the  construction  of  those  clauses  with  which  it 
was  originally  associated.f 

Acts  void  in  part  and  valid  in  part. — It  is  well  settled  that 
an  act  may  be  void  in  part  by  reason  of  its  violation  of  a  con- 
stitutional provision,  and  good  as  to  the  remainder.  "  If  any 
part  of  the  act  be  unconstitutional,"  said  the  Supreme  Court  of 
the  United  States,  "the  provisions  of  that  part  may  be  disre- 
garded, while  full  effect  will  be  given  to  such  as  are  not  repug- 
nant to  the  Constitution  of  the  United  States,  or  of  the  State, 
or  to  the  ordinance  of  1787."  J 

Effects  of  Unconstitutionally. — The  effect  of  a  judgment  or 
decree  declaring  a  statute  void  for  unconstitutionally,  is  very 
stringent.  It  has  been  said  by  the  Supreme  Court  of  Massa- 
chusetts, that  an  act  of  the  Legislature  which  it  has  no  consti- 
tutional right  or  power  to  pass,  is  a  nullity,  and  all  proceedings 
under  it  are  void.(«)  So,  where  an  insolvent  debtor  is  dis- 
charged from  his  debts  by  virtue  of  an  unconstitutional  State 

*  Ogden  v.  Saunders,  12  Wheat,  pp.  267,  be,  but  that  a  law  may  be  void  in  part  and 

268.  good  in  part ;  or  in  other  words,  that  it  may 

f  Fletcher  v.  Pock,  6  Cranch,  139.  be  void   so  far  as  it  has  a  retrospective  ap- 

\  Bank  of  Hamilton  v.  Dudley's  Lessee,  2  plication  to  past  contracts,  and  valid  as  ap- 

Peters,  526;  see  also,  Ogden  v.  Saunders,  12  plied  prospectively  to  future  contracts."     See 

Wheat.  295,  per  Johnson,  J.     "It  was  not  de-  also,  Nelson  v.  People,  83  111.  390;  People  v. 

nied  on  the  argument,  and  I  presume  cannot  Mahany,  13  Mich.  481. 

(ft)  White  v.  Cannon,  6  Wall.  443. 


POWER  OF  THE  FEDERAL  JUDICIARY.  555 

bankrupt  law,  a  creditor  wiH  not  be  considered  to  have  assented 
to,  or  ratified  the  discharge,  notwithstanding  he  may  have 
proved  his  debt  under  the  commission  and  received  a  dividend, 
or  have  acted  as  one  of  the  assignees.  The  dividend  received 
by  him  will  be  considered  as  a  payment  pro  tanto  of  his  debt.* 

In  closing  this  branch  of  our  subject  we  may  remark,  that 
it  is  settled  that  where  the  limitations  on  the  law-making 
power  contained  in  the  Constitution  of  the  United  States  are 
expressed  in  general  terms,  they  are  naturally  and  necessarily 
applicable  to  the  Government  created  by  that  instrument  alone, 
and  have  no  application  to  the  legislative  power  of  the  State 
Governments.  So,  it  has  been  decided  in  regard  to  the  fifth 
amendment,  declaring  that  private  property  shall  not  be  taken 
without  compensation.f  So,  in  regard  to  the  sixth  amendment, 
securing  the  right  of  trial  by  jury  in  criminal  cases.  J  So,  in 
regard  to  the  seventh  amendment,  in  regard  to  the  right  to 
trial  by  jury  in  civil  cases. |  (a)  So,  in  regard  to  the  fourth 
amendment,  protecting  individuals  against  unreasonable  seiz- 
ures. ^[  So,  too,  in  regard  to  the  prohibition  on  cruel  and 
unusual  punishments.**  In  all  these  cases  the  limitations  act 
upon  Congress,  and  not  on  the  State  Legislatures. 

It  is  also  to  be  observed,  that  the  judiciary  of  the  United 
States  has  no  general  authority  to  declare  acts  of  the  States 
void  simply  because  they  are  repugnant  to  the  Constitution  of 
the  particular  State.  Such  power  only  belongs  to  it  when  it 
administers  the  local  law  of  the  State,  and  acts  as  a  State  tri- 
bunal must  act. ff 

It  is  important  to  notice  the  rule  which  has  been  stated, 
that  where  a  Constitution  passes,  taking  away  the  power  from 

*  Kimberly  v.  Ely,  6  Pick.  440.  ft  Calder  v.  Bull,  3  Dall.  386;  Satterlee 

f  Barren  v.  The  Mayor  <fcc.  of  Baltimore,  v.  Matthewson,  2  Peters,  380.     The  Supreme 

7  Peters,  243.  Court  has  no  authority  on  a  writ  of  error  from 

\  Murphy  v.   The   People,  2  Cow.   815;  a  State  court,  to  declare  a  State  law  void  on 

Jackson  v.  Wood,  2  Cowen,  819.  account  of  its  collision  with  a  State  Constitu-  - 

||  Livingston  v.  The  Mayor,  8  Wend.  100;  tion,  it  not  being  a    case   embraced   in   the 

Colt  v.  Eves,  12  Conn.  243.  judiciary  act,  which  alone   gives   power  to 

*([  Reed  v.  Rice,  2  J.  J.  Marsh.  45.  issue  a  writ  of  error.     Jackson  v.  Lamphire,  3 

**  James  v.  The  Commonwealth,  12  Serg.  Peters,  289. 
and  Rawle,   220;    Barker  v.  The  People,  3 
Cowen,  687. 

(a)  But  this  amendment  applies  to  cases  removed  from  the  State  into  the  U.  S. 
courts.    The  Justices  v.  Murray,  9  Wall.  274. 


556  WRIT   OF   HABEAS   CORPUS. 

the  Legislature  to  pass  laws  on  a  particular  subject,  this  is 
equivalent  to  a  repeal  of  existing  laws  on  that  subject.""' 

Having  thus  considered  the  principal  general  rules  which 
govern  in  the  interpretation  of  the  Constitution  of  the  United 
States,  I  proceed  to  consider  some  of  the  leading  decisions  made 
upon  the  above-cited  clauses  of  the  instrument,  reserving  to  the 
last  the  examination  of  the  provision  contained  in  the  tenth 
section  of  the  first  article,  in  regard  to  the  obligation  of  con- 
tracts, which  thus  far  has  proved,  in  regard  to  private  rights, 
to  be  practically  the  most  important  clause  that  the  instrument 
con  tains,  (a) 

Habeas  Corpus.  Art.  i,  sect.  9,  §  2. — The  writ  of  habeas 
corpus  ad  subjiciendum,  was  first  secured  to  English  liberty  by 
the  famous  statute  31  Car.  II,  c.  2 ;  but  in  England,  like  all  the 
other  guaranties  of  private  right,  it  is  subject  to  the  pleasure 
of  Parliament.  Here,  we  have  fixed  it  in  the  Constitution, 
and  declared  that  it  can  only  be  forfeited  during  periods  of 
warfare  or  rebellion.  Practically,  as  yet,  Congress  has  never 
authorized  the  suspension  of  the  writ.  It  is  understood  that  as 
the  unlimited  power  is  vested  in  Congress,  the  right  to  judge  of 
the  expediency  of  its  exercise  is  also  absolute  in  that  body.f 

*  Ogden  v.  Saunders,  12  Wheat.  278,  per  v.  Borders,  4  Scam.  344;  see  this  case  as  to 

Johnson,  J.  the  ordinance  of  1787.  and  the  Constitution  of 

I  may  here  notice  that  it  has  been  said  in  Illinois.     On  the  subject  of  the  ordinance  of 

Illinois,  that  a  proviso  in  a  Constitution,  as  in  1787,  see  also,  1  Missouri,  472,  725 ;  Walker, 

a  statute,  cannot  enlarge  the  enacting  clause ;  Miss.  36  ;  20  Martin,  699. 

it  can  only  restrain,  qualify,  or  explain.  Sarah  f  Martin  v.  Mott,  12  Wheat.  19. 

(a)  Treaties. — As  to  the  binding  effect  and  force  of  treaties  under  the  constitu- 
tional provision  in  reference  to  them.  An  act  of  Congress  passed  after  a  treaty  can- 
not affect  private  titles  under  it.  Congress  has  no  power  to  settle  rights  under 
treaties  except  in  matters  purely  political.  The  construction  of  treaties  is  the  pecul- 
iar province  of  the  judiciary  in  a  case  between  individuals  and  touching  their 
private  rights.  Wilson  v.  Wall,  6  Wall.  83.  How  far  the  stipulations,  and  especially 
the  promissory  stipulations,  of  treaties  are  binding  upon  Congress,  has  been  and  still 
is  a  disputed  question.  But  so  far  as  the  acts  to  be  done  were  political,  and  so  far 
as  the  questions  arising  from  the  observance  or  the  violation  of  such  stipulations  by 
Congress  were  political,  the  courts  of  the  United  States  would  have  no  jurisdiction; 
such  acts  and  questions  are  not  within  the  range  of  the  judicial  function.  That 
courts  are  bound  by  a  political  act  of  Congress  imposing  a  duty,  although  inconsist- 
ent with  a  treaty,  see  The  Cherokee  Tobacco,  11  Wall.  617;  U.  8.  v.  Tobacco  Co.  1 
Dillon  C.  C.  264 ;  Ropes  v.  Clinch,  8  Blatch.  C.  C.  304. 

It  has  been  held  that  the  treaty  of  extradition  with  France  is  binding  upon  the 
State  courts  without  any  legislation  upon  it.  Matter  of  Metzger,  Edm.  Sel.  Cas.  399. 


EX    POST  FACTO  LAWS.  557 

of  Attainder.  Art.  i,  sect.  9,  §  3. — Bills  of  attainder 
(the  enactment  of  which  is  forbidden  with  us  as  well  by  the 
States  as  by  Congress),  as  they  are  strictly  called  when  inflict- 
ing capital  punishments,  and  bills  of  pains  and  penalties,  or 
those  wrhich  award  lesser  punishment,  are  believed  to  be 
equally  within  the  scope  of  the  constitutional  restriction.* 
They  both  belong  in  fact,  as  we  have  already  noticed,  to  the 
most  vicious  class  of  judicial  legislation.f  The  history  of  En- 
gland is  filled  with  instances  of  the  gross  abuse  of  this  tre- 
mendous engine  of  political  power  ;  but  they  are  now  appar- 
ently, as  little  likely  to  be  resorted  to  there  as  here,  unless  some 
violent  domestic  convulsion  should  disturb  the  equilibrium  of 
that  eminently  practical  and  conservative  people.  J 

Ex  post  facto  Laws,  (a)   Art.  i,  sect.  9,  §  3. — This  phrase  is 

*  Fletcher  v.  Peck,  6  Crancb,  138.  giance  to  this  State.     The  forfeitures  arising 

f  Ante,  p.  121.  from  the  attainder  must  be  sought  for  in  the 

\  See  Wooddeson's  Law  Lectures,  lect.  41.  act  and  nowhere  else."     It  is  an  interesting 

Mr.  Justice  Story,  in  his  Commentary,  §  1338,  case  as  to  the  effect  of  an  act  of  attainder. 
says  that  the  power  of  passing  bills  of  at-  Mr.  Austin,  in  his  valuable  work  on  Juris- 

tainder  was  used  during  the  American  Revo-  prudence,  says  :  "  The  sovereign  Roman  peo- 

lution  with  a  most  unsparing  hand.     In  Jack-  pie    solemnly  voted    or   resolved,  that  they 

son  v.  Catlin,  2  J.  R.  248,  it  is  said:    "The  would  never  pass,  or  even  take  into  consider- 

act  of  2'2d  October,  1779,  attainted,  among  ation,  what  Twill  venture  to  denominate  a 

others,  Thomas  Jones,  of  the  offence  of  adher-  bill  of  pains  or  penalties.     This  solemn  reso- 

ing  to  the  enemy  of  this  State.     It  was  a  spe-  lution  or  vote  was  passed  with  the  forms  of 

cine  offence,  and  was  not  declared  or  under-  legislation,  and  was  inserted  in   the  twelve 

stood  to  amount  to  treason ;  because  many  of  tables  in   the  following  imperative  terms — 

the   persons  attainted  had  never  owed  alle-  Privilegia  ne  irriganto" 

(a)  Ex  post  facto  Laws. — The  recent  cases  illustrative  of  ex  post  facto  laws  are  ar- 
ranged in  general  classes  according  to  the  subject-matter  of  the  statute.  The  rebell- 
ion gave  birth  to  an  unusual  number  of  such  laws,  and  of  decisions  upon  them. 

Forfeitures  and  Confiscations. — Provisions  in  a  statute  and  in  State  Constitution 
declaring  forfeiture  of  office  by  curators  of  a  college  for  failure  to  take  a  test  oath, 
were  held  void  as  ex  post  facto  in  State  v.  Adams,  44  Mo.  570.  This  and  other  Mis- 
souri cases  cited  follow  decisions  of  the  U.  S.  Supreme  Court,  and  overrule  doctrines 
in  earlier  cases  in  the  same  State;  see  remarks  on  the  subject  of  test  oaths,  infra. 
Statutes  of  Congress  and  of  States  requiring  a  test  oath  from  attorneys  as  condition 
of  being  allowed  to  practice,  were  also  held  void  in  Ex  parte  Garland,  4  Wall.  333 ; 
In  re  Murphy  and  Glover,  41  Mo.  339  ;  State  v.  Heighland,  41  Mo.  388  ;  per  contra, 
Cohen  v.  Wright,  22  Cal.  293  ;  Ex  parte  Yale,  24  Cal.  241 ;  State  v.  Garesche,  36  Mo. 
256 ;  but  these  last  cases  are  certainly  overruled  by  the  U.  S.  Supreme  Court.  A 
similar  requirement  as  to  clergymen  as  a  prerequisite  to  their  exercising  their  clerical 
functions,  State  v.  Cummings,  4  Wall.  277,  overruling  s.  c.  36  Mo.  263,  and  other 
Missouri  cases.  The  Supreme  Court  of  the  United  States  in  the  two  leading  cases, 
State  v.  Cummings,  and  Ex  parte  Garland,  discussed  the  subject  of  ex  post  facto  laws 
at  length,  and  held  that  all  statutes,  either  of  State  or  of  Congress,  which  require  test 
oaths  of  loyalty  during  the  rebellion,  and  prescribe  as  a  result  or  consequence  of 


558  EX   POST  FACTO  LAWS. 

now  well  settled  to  apply  only  to  acts  of  a  criminal  nature, 
An  ex  post  facto  law  is  one  which  renders  an  act  punishable  in 

not  taking  such  oaths  in  relation  to  past  conduct,  that  persons  shall  not  pursue  pro- 
fessions or  exercise  callings,  or  engage  in  business,  are  ex  post  facto  laws  and  void. 
This  determination  is  of  course  confined  to  the  effect  and  operation  of  such  laws 
upon  the  past  conduct  of  the  persons  affected  l>y  them,  no  such  penalties  or  for- 
feitures or  punishment  existing  when  the  criminal  acts  were  done.  These  decisions  of 
the  U.  S.  Supreme  Court,  being  rendered  in  cases  involving  a  construction  of  the 
national  Constitution,  are  binding  upon  the  State  courts,  and  overrule  all  the  con- 
trary decisions  of  those  courts,  and  settle  the  doctrine  for  the  whole  country. 

Some  of  the  State  Constitutions  or  statutes  have  prescribed  a  test  oath  of  loyalty 
as  a  prerequisite  to  the  right  of  suffrage.  Such  a  statutory  requirement  was  held 
void  in  Rison  v.  Farr,  24  Ark.  161,  as  it  violated  the  State  Constitution  ;  per  contra, 
it  was  held  valid  in  Randolph  v.  Good,  3  W.  Va.  551 ;  State  v.  Neal,  42  Mo.  119; 
and  see  Anderson  v.  Baker,  23  Md.  531  ;  Blair  v.  Ridgeley,  41  Mo.  63 ;  State  v. 
Staten,  6  Cold.  248.  In  Green  v.  Shumway,  39  N.  Y.  418,  a  statute  of  K  Y.  impos- 
ing a  similar  test  oath  as  a  condition  of  voting  at  a  certain  election,  was  by  the 
judgment  of  the  court  declared  void,  but  it  can  hardly  be  said  that  the  court  by^  a 
majority  of  the  judges  established  any  rule  or  doctrine.  The  Supreme  Court  of  the 
United  States  has  not  as  yet  passed  upon  this  particular  question.  Entirely  agreeing 
with  the  decisions  of  the  U.  S.  Court  that  the  test  oath  statutes  were  ex  post  facto 
laws  when  applied  to  the  subject-matter  of  trades,  professions,  businesses,  &c.,  and 
made  a  penalty  for  past  crimes,  we  think  there  is  a  clear  and  broad  distinction 
between  such  cases  and  those  involving  the  right  of  suffrage.  Of  course,  if  the 
State  Constitution  prescribes  the  qualifications  of  electors,  and  a  statute  demands 
other  and  antagonistic  qualifications,  it  would  violate  the  State  Constitution.  But 
the  question  under  discussion  is  concerned  solely  with  the  relations  of  State  statutes 
or  Constitutions  with  the  provision  of  the  national  Constitution  prohibiting  the 
States  to  pass  ex  post  facto  laws.  In  order  that  a  law  should  be  ex  post  facto,  it  must 
inflict  some  legal  penalty,  and  thus  must  consist  in  taking  away  a  legal  right  or  im- 
posing some  legal  burden.  A  State  Constitution  which  demands  a  test  oath  of  loyalty 
as  a  prerequisite  of  exercising  the  electoral  franchise,  does  not  take  away  a  legal 
right  or  impose  a  legal  burden,  because  no  person  in  the  State  has  any  right  to  vote 
independent  of  the  express  provisions  of  the  State  Constitution.  The  very  Constitu- 
tion which  contains  the  restriction  is  the  source  of  all  power,  capacity,  or  right  of 
voting ;  and  if  such  Constitution  imposes  a  test  oath  as  a  qualification,  it  does  the 
same  in  essence  as  when  it  imposes  the  age  of  twenty- one  years,  citizenship,  or  the 
male  sex,  as  a  prerequisite.  In  other  words,  as  the  subject  of  electoral  capacity  has 
been  left  to  the  States  absolutely  untrammeled,  except  by  the  provisions  respecting 
race  and  color,  any  changes  which  the  State  may  think  best  to  make  in  defining  the 
qualifications  of  voters,  do  not  take  away  any  right  or  impose  any  legal  burden,  and 
cannot  therefore  be  ex  post  facto  laws,  however  much  they  may  apply  to  past  acts 
and  transactions.  See  Pomeroy's  Constitutional  Law,  §§  532-535. 

It  was  held  in  Ex  parte  Stratton,  1  W.  Va.  305,  that  an  oath  of  allegiance  to  the 
United  States  might  be  required  of  State  officers. 

The  act  of  Congress  of  June  7,  1862,  so  far  as  it  attempts  to  forfeit  land  for  non- 
payment of  taxes  as  a  punishment  for  rebellion,  was  held  void  as  a  bill  of  attainder 
in  Martin  v.  Suowden,  18  Gratt.  100.  The  confiscation  act  of  Congress  of  July  17, 


EX  POST  FACTO  LAWS.  559 

a  manner  in  which  it  was  not  punishable  when  it  was  com. 
mitted,  whether  by  personal  or  pecuniary  penalties.  *  The 

*  Fletcher  v.  Peck,  6  Cranch,  138. 

1862,  providing  a  judicial  proceeding  and  determination  is  constitutional  and  valid. 
Miller  v.  U.  S.  11  Wall.  268;  Bigelow  v.  Forrest,  9  Wall.  339;  see  also  Mrs.  Alex- 
ander's Cotton,  2  Wall.  404 ;  U.  S.  v.  Padelford,  9  II.  531.  See  also  Dewey  v.  Mc- 
Lain,  7  Kans.  126.  The  Kentucky  court,  however,  uttered  its  protest  against  the 
statute,  and  pronounced  it  void  in  Norris  v.  Doniphan,  4  Mete.  (Ky.)  385. 

For  decisions  upon  the  act  of  Congress  of  July  13,  1861,  for  the  confiscation  of 
vessels  belonging  to  citizens  of  the  insurgent  States,  see  Prize  Cases.  2  Black,  635  ; 
The  Amy  Warwick,  2  Sprague,  123 ;  The  Ned,  Blatch.  Prize  Gas.  119.  These  and 
similar  decisions  however  proceeded  largely,  if  not  mainly,  on  the  belligerent  power 
of  the  United  States  to  establish  a  blockade. 

A  statute  which  makes  the  selling  of  liquor  already  on  hand  a  crime  and  thereby 
lessens  its  value,  is  not  ex  post  facto.  State  v.  Paul,  5  R.  I.  185  ;  State  v.  Keeran,  Jb. 
497.  See  note  on  the  "  Police  Power."  The  forfeiture  of  land  for  breach  of  internal 
revenue  law  by  a  proceeding  in  rem  is  constitutional.  U.  S.  v.  A  Distillery,  2  Abb. 
U.  S.  R.  192.  The  act  of  Congress  approved  March  3,  1865,  making  forfeiture  of 
citizenship  a  part  of  the  penalty  of  desertion,  is  not  an  ex  post  facto  law  or  a  bill  of 
attainder,  as  it  contemplates  a  trial  and  sentence  by  a  court  martial.  Gotcheus  v. 
Matheson,  58  Barb.  152.  It  seems  that  a  statute  requiring  registration  of  voters,  or 
otherwise  prescribing  qualifications  for  voters,  is  not  an  ex  post  facto  law.  Anderson 
v.  Baker,  23  Md.  531. 

Renewal  of  Penalty. — A  statute  extending  the  time^ibr  prosecution  after  the  time 
has  run  out,  is  ex  post  facto.  State  v.  Sneed,  25  Tex.  Supp.  66.  And  the  same  is 
held  of  a  statute  repealing  an  amnesty  act  as  to  all  cases  to  which  such  amnesty  had 
applied.  State  v.  Keith,  63  N.  C.  140.  After  the  old  law  as  to  murder  had  been 
repealed  without  a  saving  clause,  and  thereby  a  sentence  upon  a  verdict  rendered 
under  the  old  law  for  a  crime  committed  while  the  old  law  was  in  force,  was  rend- 
ered impossible,  a  re-enactment  of  the  old  law  was  held  ex  post  facto  and  void  as  to 
such  criminal,  and  she  was  discharged.  Hartung  v.  People,  26  N.  Y.  167,  and  see 
other  N.  Y.  cases  cited  below  in  the  next  subdivision. 

Increase  or  Change  of  the  Penalty. — By  the  provisions  of  a  New  Hampshire  statute 
the  punishment  for  robbery  was  solitary  imprisonment  for  six  months,  and  then  con- 
finement for  life  at  hard  labor;  but  the  prisoner  was  entitled  as  a  matter  of  right  to 
have  counsel  assigned  to  him  by  the  State,  to  have  process  for  his  witnesses,  a  copy 
of  the  indictment,  and  a  list  of  the  jurors,  &c.  This  statute  was  modified  by  mak- 
ing the  punishment  tto  be  solitary  confinement  for  six  months,  and  then  imprison- 
ment at  hard  labor  for  not  less  than  seven  nor  more  than  thirty  years,  and  by  leaving 
it  to  the  discretion  of  the  court,  whether  the  prisoner  should  have  counsel  assigned 
to  him,  process  for  his  witnesses,  &c.  A  person  was  charged  with  robbery  com- 
mitted under  the  former  statute,  and  the  modifying  act  was  passed  after  his  offence 
and  before  the  trial.  On  the  trial  the  court  assigned  him  counsel,  but  refused  to 
award  him  process,  or  to  grant  him  the  other  rights  conferred  by  the  earlier  legisla- 
'  tion.  On  error  after  conviction,  it  was  held  that  the  provisions  of  the  amending 
statute  were  not  ex  post  facto,  that  the  penalty  on  the  whole  was  lessened,  and  that 
the  incidental  deprivation  of  certain  privileges  did  not  add  to  the  penalty.  State  v. 
Arlin,  39  K  H.  179.  This  case  has  been  severely  criticised,  and  certainly  cannot  be 


560  EX  POST  FACTO   LAWS. 

prohibition,  whether  in  regard  to  the  government  of  the  Union 
or  of  the  several  States,  has  no  application  to  retrospective 

harmonized  with  other  recent  decisions  quoted  below.  In  New  York  the  punishment 
for  murder  was  that  the  person  convicted  should  be  hung ;  a  statute  repealed  the 
former  statute  without  any  saving  clause,  and  substituted  as  a  punishment  that  the 
convict  should  be  confined  in  the  State  prison  at  hard  labor  for  at  least  a  year,  and 
should  be  then  hung  upon  a  warrant  issued  by  the  Governor.  A  person  committed 
murder  under  the  former  act,  but  was  not  tried  and  sentenced  until  the  second  came 
into  operation.  The  latter  statute  was  held  to  be  ex  post  facto  in  its  application  to 
her  case  and  to  all  similar  cases.  Hartung  v.  People,  22  N.  Y.  95.  This  decision 
was  followed  in  other  cases,  the  court  establishing  this  rule  :  u  A  law  changing  the 
punishment  for  offences  committed  before  its  passage  is  ex  post  facto  and  void,  unless- 
the  change  consists  in  the  remission  of  some  separable  part  of  the  punishment  before 
prescribed,  or  is  referable  to  prison  discipline  or  penal  administration  as  its  primary 
object."  Katzky  v.  People,  29  N.  Y.  124 ;  Shepherd  v.  People,  25  N.  Y.  406. 

A  statute  merely  mitigating  punishment  is  not  ex  post  facto,  Dolan  v.  Thomas, 
12  Allen,  421.  Nor  a  statute  changing  the  place  of  imprisonment  from  a  house  of 
correction  in  the  county  where  the  offence  was  committed  to  a  house  of  correction  in 
any  other  county,  in  the  discretion  of  the  court,  for  this  is  simply  a  matter  of  prison 
discipline  and  penal  administration.  Carter  v.  Burt,  12  Allen,  424. 

It  seems  that  a  statute  authorizing  the  jury  in  their  discretion  to  inflict  a  fine  or 
imprisonment  in  the  county  jail  or  both,  in  lieu  of  imprisonment  in  the  State  peni- 
tentiary not  less  than  two  nor  more  than  five  years,  is  a  mitigation  of  the  penalty. 
State  v.  Turner,  40  Ala.  21.  When  the  original  penalty  was  imprisonment  not  ex- 
ceeding one  year,  and  it  was  changed  to  imprisonment  not  less  than  three  nor  more 
than  twelve  months,  the  amendatory  statute,  so  far  as  it  affected  past  offences,  was- 
held  to  be  ex  post  facto.  Flaherty  v.  Thomas,  12  Allen,  428.  Where  an  original  act 
imposed  $50  as  a  penalty,  and  a  subsequent  one  applicable  by  its  terms  to  past 
offenses  imposed  a  penalty  "not  exceeding  $100,"  the  second  statute  was  held  to  be 
operative  as  to  past  offences,  so  far  as  to  make  the  penalty  discretionary,  but  not  to 
exceed  the  old  limit  of  $50.  Chicago  &c.  R.  R.  v.  Adler,  56  111.  344.  A  law  defin- 
ing two  degrees  of  murder,  and  making  the  second  punishable  by  imprisonment  for 
life,  is  not  ex  post  facto  as  to  past  offences,  since  the  punishment  for  the  first  degree 
is  left  the  same,  and  that  of  the  second  degree  is  in  fact  a  mitigation  of  the  penalty 
which  would  have  been  inflicted  under  the  former  law.  Commonwealth  v.  Gardner? 
11  Gray,  438. 

Changes  in  Procedure,  Pleading,  Evidence,  Courts,  and  Venue. — It  seems  that  a 
statute  limiting  the  right  to  object  to  an  indictment  to  a  certain  stage  in  the  pro- 
ceeding, which  stage  in  a  particular  case  had  been  passed  before  the  passage  of  the 
statute,  would  be  ex  post  facto  in  its  application  to  such  case.  Martin  v.  State,  22 
Tex.  214.  An  act  authorizing  conviction  upon  the  unsupported  evidence  of  an 
accomplice,  cannot  be  applied  to  the  trial  of  a  crime  committed  before  its  passage. 
Hart  v.  State,  40  Ala.  32.  Where  a  statute  making  that  evidence  of  a  crime  which 
was  not  so  before,  is  passed  to  go  into  effect  at  a  future  day,  a  person  committing 
the  crime  after  its  passage,  but  before  it  goes  into  effect,  cannot  be  tried  and  punished 
under  it.  State  v.  Bond,  4  Jones  (Law),  9. 

An  act  giving  additional  right  of  challenge  to  the  prosecution  is  not  ex  post  facto. 
Walston  v.  Commonwealth,  16  B.  Mon.  15;  State  v.  Ryan,  13  Minn.  370.  Nor  one 


JUDICIAL  PROCEEDINGS.  561 

laws  of  a  civil  character,  nor  any  tendency  to  protect  property 
or  vested  rights  of  a  civil  description.  * 

Faith  and  Credit  of  Judicial  Proceedings.  Art.  iv,  sec.  1. 
« — I  have  already  f  called  attention  to  this  provision.  The  act 
of  May  26,  1790,  provides  the  manner  of  authenticating  acts 
and  records,  and  declares  that  when  so  authenticated  they  shall 
have  such  faith  and  credit  given  to  them  in  any  court  wdthin 
the  United  States,  as  they  have  by  law  or  usage  in  the  courts 
of  the  State  from  whence  the  records  are  taken.  Under  this, 
it  has  been  decided  that  if  a  judgment  has  the  effect  of  record 
evidence  in  the  courts  of  the  State  from  whence  it  is  taken,  it 
has  the  same  effect  in  the  courts  of  any  other  State.  At  com- 
mon law,  a  judgment  of  the  courts  of  one  State  would  have 
been  prima  facie  evidence  in  the  courts  of  any  other  State. 

*  Watson  v.   Mercer,  8  Peters,  1 10 ;  see  cision  which  leaves  a  large  class  of  arbitrary 

also,  Dash  v.  Van  Kleeck,  7  J.  R.  477.     This  legislative  acts  without  the  prohibitions  of 

restricted  interpretation   of  a  phrase  which,  the  Constitution." 

on  its  face,  is  susceptible  of  a  much   wider  In  Carpenter  v.  Commonwealth  of  Penn- 

construction,  has,  however,   been  repeatedly  sylvania,   17  How.  456,   the  Supreme  Court 

regretted.      In   Satterlee    v.   Matthewson,   2  reviewed  the  cases,  and  again  decided  that 

Peters,  380,  where  a  retrospective  law  was  the  phrase  ex  post  facto  is  to  be  taken  as  ap- 

sustained,  Mr.  J.  Johnson,  dissenting,  says :  plied  to*  criminal  cases  only,  and  that  it  did 

"  The  whole  difficulty  arises  out  of  the  un-  not  apply  to  an  explanatory  act  the  effect  of 

happy  idea  that  the  phrase  ex  post  facto,  in  which  was  to  charge  an  estate  with  taxes  to 

the  Constitution  of  the  United  States,  was  which  it  had  not  been  before  subjected, 
confined  to  criminal  cases  exclusively,  a  de-          f  Ante,  p.  63. 

authorizing  amendment  of  indictment  in  case  of  misnomer.  State  v.  Manning,  14 
Tex.  402.  Nor  one  which  prevents  a  defendant  from  taking  advantage  of  variances 
which  do  not  prejudice  him.  Commonwealth  v.  Hall,  98  Mass.  570. 

Where  a  city  had  power  under  its  charter  to  establish  a  tribunal  to  try  contested 
elections,  it  was  held  that  such  tribunal  might  take  cognizance  of  a  case  arising  out 
of  an  election  held  before  it  was  constituted.  State  v.  Johnson,  17  Ark.  407.  But 
if,  at  the  time  an  offence  was  committed,  no  court  or  tribunal  had'  jurisdiction  to 
try  it,  it  cannot  be  punished,  because  there  was  in  fact  no  offence,  and  clothing  a 
court  with  authority  to  try  it  would  be  in  substance  to  create  the  offence.  U.  S.  v. 
Start,  1  Hemp.  469.  It  seems,  however,  that  a  tribunal  may  be  subsequently  author- 
ized to  try  prior  offences  of  which  another  court  had,  at  the  time  of  their  commis- 
sion, exclusive  jurisdiction.  State  v.  Sullivan,  14  Rich.  (Law)  281.  A  statute 
changing  the  place  of  trial  of  an  offence  after  its  commission  is  not  ex  'post  facto. 
Cut  v.  State,  9  Wall.  35. 

Civil  Remedies. — A  law  taking  away  remedies  for  breach  of  contract  or  for  tort  is 
not  ex  post  facto.  Lord  v.  Chadbourne,  42  Me.  429.  Nor  is  a  re-assessment  for  local 
improvements.  Butler  v.  Toledo,  5  Ohio,  N.  S.  225.  Nor  are  any  laws  affecting 
civil  fights  or  remedies  merely.  Calder  v.  Bull,  3  Dall.  386 ;  Rich  v.  Flanders,  39 
N.  H.  304  ;  South  wick  v.  South  wick,  49  N.  Y.  510.  A  constitutional  provision  of  a 
State  prohibiting  suits  for  acts  done  under  military  authority  is  not  ex  post  facto. 
Drehman  v.  Stifle,  8  Wall.  595. 
36 


562  PRIVILEGES  AND  IMMUNITIES. 

The  Constitution  contemplates  a  power  in  Congress  to  give  a 
conclusive  power  to  such  judgments,  which  power  it  has  exe- 
cuted by  declaring  a  judgment  conclusive  when  the  courts  of 
the  State  where  it  is  rendered,  would  so  pronounce  it.*  (#) 

Mutual  Enjoyment  of  Privileges  and  Immunities.  Art.  iv, 
sect.  2,  §  1.  —  This  clause  has  not  as  yet  received  the  attention 
which  from  its  importance  it  would  have  been  expected  to 
command.  It  has  been  considered  but  in  a  few  instances,  and 
no  general  authoritative  exposition  of  it  has  as  yet  been  de- 
clared. (&)  Some  partial  interpretations  of  it  have,  however, 


*  Mills  v.  Duryee,  7  Cranch,  481  ;  Hamp-  Montgomery,  19  J.  R.  162;  Borden  v.  Fitch,  15 
ton  T.  M'Connel,  3  Wheat.  234;  Andrews  v.  J.  R.  121  ;  Black's  Case,  4  Abb.  Pr.  Rep.  164. 

(a)  A  statute  providing  that  no  suit  shall  be  brought  on  a  judgment  of  any  court 
without  the  State  against  a  citizen  of  the  State,  if  the  original  suit  would  have  been 
barred  by  the  statute  of  limitations  if  brought  within  such  State,  is  unconstitutional. 
Christmas  v.  Russell,  5  Wall.  290.  As  to  the  force  of  judgments  of  confederate 
courts,  see  Martin  T.  Hewitt,  44  Ala.  418.  As  to  the  effect  of  the  clause  see  Darcy  v. 
Ketchum,  11  How.  165,  175  ;  Green  v.  Van  Buskirk,  5  Wall.  307;  s.  c.  7  Wall.  139; 
Cheever  v.  Wilson,  9  Wall.  108,  123  ;  Board,  &c.  v.  Columbia  Coll.  17  Wall.  521  ; 
Thompson  v.  Whitman,  9  Alb.  L.  J.  256  ;  18  Wall. 

(ft)  Citizenship  :  Privileges  an'd  Immunities  of  Citizens.  —  Corporations  are  not 
citizens  within  this  guaranty.  Paul  v.  Virginia,  8  Wall.  168  ;  Liverpool  Ins.  Co.  v. 
Massachusetts,  10  Wall.  566;  Ducat  v.  Chicago,  10  Wall.  410;  s.  c.  48  111.  172;. 
Phoenix  Ins.  Co.  v.  Commonwealth,  5  Bush  (Ky.)  68  ;  Slaughter  v.  Commonwealth^ 
13  Gratt.  767  ;  Cincinnati  Mut.  H.  A.  Co.  v.  Rosenthal,  55  111.  85  ;  Philadelphia  Ass. 
v.  Wood,  39  Penn.  St.  73.  And  the  Legislature  may  prohibit  foreign  corporations 
from  doing  business  within  the  State,  or  may  impose  conditions.  Fire  Department 
v.  Heltenstein,  16  Wise.  136. 

An  article  in  a  State  Constitution  prohibiting  any  negro  or  mulatto  from  coming 
into  the  State,  and  avoiding  all  contracts  made  with  such  as  shall  come  in  contrary 
to  such  prohibition,  conflicts  with  this  guaranty  of  the  United  States  Constitution^ 
and  is  void.  Smith  v.  Moody,  26  Ind.  299. 

The  meaning  and  extent  of  the  clause  in  question  was  discussed  and  partially 
stated,  some  of  the  rights  of  citizens  were  enumerated,  and  a  State  statute 
which  had  the  effect  to  tax  citizens  passing  through  the  State  was  held  void,  in 
Crandall  v.  Nevada,  6  Wall.  35.  But  a  statute  requiring  a  defendant  removing  out 
of  the  State  after  suit  brought  to  give  security  is  valid.  H.iney  v.  Marshall,  9  Md. 
194.  When  a  city  ordinance  imposed  a  license  tax  upon  dealers  in  beer  not  manu- 
factured in  the  city,  but  brought  there  for  sale,  but  it  not  appearing  that  the  beer  in 
the  case  at  bar  was  manufactured  outside  the  State,  the  tax  was  sustained.  Down- 
ham  v.  Alexandria  Council,  10  Wall.  173.  This  case  was  argued  upon  the  assump- 
tion that  the  ordinance  was  aimed  at  dealers  in  beer  manufactured  outside  of  the 
State,  but  the  court  held  that  the  general  question  discussed  was  not  raised  by  the 
record,  and  therefore  refused  to  pass  upon  it.  But  the  same  court  held  in  a  sub- 
sequent case,  that  a  discriminating  State  tax  against  non-resident  traders  coming 
from  othsr  States  is  void.  Ward  v.  Maryland,  12  Wall.  418.  And  this  case  un- 
doubtedly overrules  many  decisions  of  State  courts,  some  of  which  are  cited  infra. 


PRIVILEGES    AND   IMMUNITIES.  563 

been  made.  *     It  has  been  held,  on  the  third  circuit,  in  apply- 
ing the  clause,  that  an  act  of  the  State  of  New  Jersey  limiting 

*  As  to  the  effect  of  the  clause  in  New  remedies  of    its   citizens  in   its  own   courts 

York,   see   Frost   v.    Brisbin,   19  Wend.    11;  cannot  be  applied  to  prevent  the  citizens  of 

Rogers  v.  Rogers,   1    Paige,  184.     An  incor-  other  States  from  suing  in  the  courts  of  the 

porated  company  is  not  a  citizen  within  the  United  States  in  that  State,  for  the  recovery 

meaning  of  the  clause  in  the  Constitution  by  of  any  property  or  money  there  to  which  they 

which  the  citizens  of  each   State  are  entitled  may  be  legally  or  equitably  entitled.     The 

to  all  privileges  and  immunities  of  citizens  in  Union   Bank  of  Tennessee  v.  Jolly's  Admin- 

the  several  States.     The  People  v.  Iinlay,  20  istrators,  18  How.  504;  confirming  Suydara 

Barb.  68.     In  connection  with  this  it  may  be  v.  Broadnax,  14  Peters,  67. 
noticed  that  the  law  of  a  State  limiting  the 


in  this  note.  As  to  taxation  in  this  connection,  see  People  v.  Coleman,  4  Cal.  46 ; 
Sing  Sing  v.  Washburne,  20  Cal.  534 ;  Erie  R.  R.  v.  New  Jersey,  2  Vroom,  530 ; 
Commonwealth  v.  Erie  R.  R.  62  Penn.  St.  286;  Hinsen  v.  Lott,  40  Vt.  133.  It  was 
held  in  Shipper  v.  Penn.  R.  R.  47  Penn.  St.  338,  that  a  discrimination  against 
through  freight  in  favor  of  local  freight  is  valid.  But  in  the  State  Freight  Tax,  15 
Wall.  232,  the  Supreme  Court  of  the  United  States  decided  that  a  tax  upon  freight 
taken  up  in  the  State  and  carried  out,  or  taken  up  out  of  the  State  and  carried  in, 
is  unconstitutional,  on  the  ground  that  it  is  an  interference  with  commerce  among 
the  States,  over  which  Congress  has  exclusive  control.  *  See  further  on  this  subject 
the  cases  cited  in  note  on  "  Taxation,"  subdivision  "  State  and  National." 

It  was  held  in  Iowa  that  a  provision  in  a  municipal  charter  authorizing  taxation 
of  u  transient  merchants  "  was  valid.  Mount  Pleasant  v.  Clutch,  6  Clarke  (la.)  546. 
So  far  as  this  decision  uphold?  a  State  tax  upon  such  persons  citizens  of  other  States, 
which  is  not  equally  imposed  upon  the  same  class  citizens  of  the  State  imposing  the 
tax,  it  is  plainly  overruled  by  the  case  of  Ward  v.  Maryland,  ubi  supra. 

When  there  are  different  provisions  for  valuing  lands  of  non-resident  and  of 
resident  owners,  there  being  no  unjust  discrimination  against  the  former,  the  statute 
does  not  violate  the  Constitution.  Redd  v.  St.  Francis  County,  17  Ark.  416.  A  tax 
of  one  fifteenth  on  dividends  of  non-resident  stockholders  y^as  held  unconstitutional, 
in  Oliver  v.  Washington  Mills,  11  Allen,  268. 

The  XlVth  and  XVth  Amendments  of  the  National  Constitution  define  the 
status  of  citizenship,  and  more  expressly  state  and  define,  even  if  they  do  not  add 
further  protection  to,  the  lights,  privileges,  and  immunities  of  citizens.  The  first 
section  of  the  XlVth  Amendment  is  as  follows:  "  All  persons  born  or  naturalized  in 
the  United  States,  and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United 
States  and  of  the  State  wherein  they  reside.  No  State  shall  make  or  enforce  any 
law  which  shall  abridge  the  privileges  or  immunities  of  citizens  of  the  United 
States,  nor  shall  any  Stato  deprive  any  person  of  life,  liberty,  or  property,  without 
due  process  of  law,  nor  deny  to  any  person  within  its  jurisdiction  the  equal  protec- 
tion of  the  laws."  The  XVth  Amendment  provides  that  "  The  right  of  citizens  of 
the  United  States  to  vote  shall  not  be  denied  or  Abridged  by  the  United  States  or 
by  any  State  on  account  of  race,  color,  or  previous  condition  of  servitude."  Con- 
gress is  empowered  to  enforce  the  provisions  of  both  amendments  by  appropriate 
legislation. 

The  XlVth  Amendment,  beyond  douot,  brings  a  large  class  of  State  acts,  stat- 
utes and  transactions  within  the  jurisdiction  of  the  United  States  Supreme  Court, 
which  before  it  were  left  exclusively  to  the  jurisdiction  of  the  State  tribunals.  Thus, 
when  it  is  claimed  that  a  State  law  has  the  effect  to  deprive  a  person  of  life,  liberty, 
or  property,  without  due  process  of  law,  the  validity  of  such  law  may  be  examined 


564  PRIVILEGES    AXD    IMMUNITIES. 

the  right  to  take  oysters  and  clams  to  actual  inhabitants  and 
residents  of  the  State,  did  not  conflict  with  it,  upon  the  ground 

by  the  U.  S.  Supreme  Court  in  the  s  ^me  manner  and  to  the  same  extent  as  that 
court  has  been  accustomed  to  pass  upon  the  validity  of  State  laws  said  to  impair 
the  obligation  of  contracts,  or  to  be  ex  post  facto,  or  bills  of  attainder.  There  can  be 
no  doubt  that  this  position  is  correct,  we  say,  notwithstanding  some  portions  of  the 
argument  of  the  prevailing  opinion  in  the  Slaughter  House  Case  to  be  immediately 
mentioned,  seem  to  confine  the  entire  operations  and  effects  of  the  XlVth  as  well  as 
the  XVth  Amendment  to  the  Negro  race.  But  it  is  impossible  that  language  so 
broad  as  that  used  in  the  XlVth  Amendment, — "  Citizens  of  the  United  States," 
"any  person," — should  be  restricted  to  a  small  class  of  "  citizens  "  and  "  persons," 
namely,  the  Negroes.  This  amendment  is  most  beneficial  when  reasonably  con- 
strued; it  supplies  a  want  which  had  existed  in  the  Constitution  from  the  outset, 
and  makes  that  instrument,  so  far  as  it  protects  private  rights,  symmetrical  and  com- 
plete; it  places  the  lives,  liberty,  and  property  of  persons  under  exactly  the  same 
safeguards  and  protection  wt>ich  the  original  Constitution  afforded  to  their  contracts. 
To  say  that  this  broad  provision,  expressed  in  such  inclusive  terms,  supplying  such 
a  long-felt  want,  making  the  nation  through  its  judiciary  to  afford  the  same  pro- 
tection to  the  citizen  at  home  which  it  has  always  been  able  to  afford  by  its  executive 
to  the  citizen  abroad, — to  say  that  this  provision  is  confined  to  the  Negroes,  as  a 
mere  step  in  the  progress  of  their  emancipation  from  slavery,  is  to  contradict  at  once 
the  meaning  of  language  and  the  facts  of  history. 

But  whether  the  XlVth  Amendment  has  adcled  anything  to  the  "  rights,  privi- 
leges and  immunities  of  citizens,"  whether  it  has  created  any  new  rights,  whether  it 
has  done  anything  more  than  to  bring  those  which  really  existed  before  within  the 
jurisdiction  and  protection  of  the  supreme  national  judiciary,  and  perhaps  to  enable 
Congress  to  legislate  directly  for  their  protection,  so  that  positive  sanctions  may  be 
wielded  by  the  national  administrative  officials,  is  another  and  far  different  question. 
From  the  prevailing  opinion  of  a  majority  of  the  Supreme  Court  in  the  cases  to  be 
immediately  referred  to,  it  would  seem  that  the  amendment  has  not  increased, 
altered,  or  added  to  the  rights,  privileges  and  immunities  of  citizens,  but  has  only 
given  the  protection  we  have  described  in  the  preceding  sentence  to  those  already 
existing. 

In  two  very  recent  cases  decided  in  1873,  the  Supreme  Court  construed  these 
amendments,  and  discussed,  with  a  fullness  hitherto  found  in  no  case,  the  meaning  of 
Art.  iv,  sec.  2,  §  1,  and  in  an  authoritative  manner  defined  the  classes  of  rights,  priv- 
ileges, and  immunities  which  belong  to  citizens  of  the  United  States  and  of  the 
several  States  as  such,  laying  down  the  criterion  and  test  by  which  such  rights  can 
be  determined.  The  first  of  these  cases  was  that  of  The  New  Orleans  Slaughter 
House,  Live  Stock  &c.  Association  v.  Crescent  City  &c.  Co.  At  the  Circuit  below, 
Mr.  Justice  Bradley  decided  that  a  statute  of  Louisiana  giving  to  a  certain  corpora- 
tion the  exclusive  privilege  of  slaughtering  animals  within  certain  fixed  limits  in- 
cluding the  city  of  New  Orleans,  was  void,  being  in  violation  of  the  first  section  of 
the  XlVth  Amendment.  He  held  in  substance  that  this  amendment  added  to  the 
rights,  &c.,  of  citizens,  that  it  was  a  new  restriction  upon  the  legislative  power  of 
the  States,  and  that  among  the  rights,  privileges,  and  immunities  of  citizens  which 
it  protected,  was  the  right  to  labor,  to  engage  in  any  legal  trade  or  calling.  See  the 
case  below  reported  in  1  Abb.  U.  S.  R.  388.  On  appeal  from  his  decree  to  the  Su- 


PRIVILEGES  AND  IMMUNITIES.  565 

that  it  would  be  going  quite  too  far  to  construe  the  guaranty 
of  privileges  and  immunities  of  citizens  as  amounting  to  a 

preme  Court,  it  was  reversed  by  a  bare  majority  of  the  judges.  The  opinion  of  the 
majority  describes  in  an  exhaustive  manner  the  classes  of  rights,  privileges,  and 
immunities  which  belong  to  citizenship  as  a  status,  whether  it  be  of  the  nation  or 
of  a  State,  and  holds  that  only  such  rights,  privileges,  and  immunities  are  .protected 
by  the  amendment  in  question,  or  by  the  provision  in  the  fourth  article.  The  statute 
in  controversy  was  declared  to  be  a  reasonable  police  regulation,  always  within  the 
competency  of  State  Legislatures.  Some  portions  of  this  opinion — although  as  it 
seems  to  us  utterly  unnecessary  to  the  decision  of  the  case,  or  to  the  main  argument 
upon  which  that  decision  is  based — seem  to  regard  the  whole  XlVth  Amendment 
as  a  provision  passed  for  the  sole  purpose  of  'securing  the  rights  of  freemen  to  the 
former  slaves,  and  as  applicable  to  them  alone.  The  dissenting  judges  adopted  the 
positions  of  Mr.  Justice  Bradley  in  the  court  below.  See  16  Wall.  36. 

The  same  questions  were  also  presented  and  passed  upon  by  the  court  in  the 
matter  of  Mrs.  Myra  Bradwell.  Mrs.  B.  applied  to  be  admitted  to  the  Bar  in 
Illinois,  and,  so  far  as  appeared,  was  possessed  of  all  the  qualifications  required 
except  one,  the  laws  of  that  State  permitting  male  persons  only  to  be  admitted  to  the 
Bar.  She  made  her  claim  partly  as  a  citizen  of  Vermont,  residing  in  Illinois,  partly 
as  a  resident  of  Illinois,  and  partly  as  a  citizen  of  the  United  States,  invoking  the 
XlVth  Amendment,  and  the  provision  of  the  fourth  article,  and  urging  that  the  law 
of  Illinois  was  in  violation  of  these  constitutional  guaranties,  and  void.  The  court, 
however,  rejected  her  contention,  and  held  that  no  right,  privilege,  or  immunity  of  a 
citizen  of  the  United  States,  or  of  a  citizen  of  another  State,  had  been  violated  by 
the  Illinois  legislation.  See  16  Wall.  130.  See  also  Bartemeyer  v.  Iowa,  18  Wall.  129. 

Both  the  XlVth  and  the  XVth  Amendments  were  construed,  and  their  effect 
upon  State  laws  conferring  the  electoral  franchise  was  passed  upon  in  the  recent  case 
of  United  States  v.  Susan  B.  Anthony,  tried  at  the  Circuit  Court  of  the  U.  S.  for  the 
Northern  District  of  New  York,  in  the  summer  of  1873,  before  Mr.  Justice  Hunt,  of 
the  U.  S.  Supreme  Court.  Miss  Anthony  had  voted  in  Rochester  at  the  previous 
election  for  Member  of  Congress  and/  for  presidential  electors,  and  was  indicted 
under  a  United  States  statute  for  such  wrongful  voting,  the  laws  of  New  York 
expressly  restricting  the  electoral  franchise  to  male  citizens  of  the  United  States  of 
the  age  of  twenty-one.  The  facts  of  her  sex  and  of  her  voting  were  conceded.  Tho 
court  held  that  neither  the  XlVth  nor  the  XVth  Amendment  affected  the  exclusive 
control  of  the  States  over  the  electoral  franchise,  except  in  the  single  matter  of 
"  race,  color,  or  previous  condition  of  servitude  ;"  that  the  first  section  of  the  XlVth 
Amendment  did  not  in  any  manner  affect  the  electoral  franchise  aor  the  electoral 
capacity ;  and  that  the  franchise,  capacity,  or  right  of  voting  was  not  one  of  the 
"privileges  or  immunities- of  citizens  of  the  United  States''  protected  by  that  section, 
against  State  interference.  Another  indictment  against  the  election  inspectors  who 
permitted  Miss  Anthony  to  vote,  also  resulted  ;n  a  judgment  of  conviction.  This 
case  of  Miss  Anthony  presented  another  very  interesting  question.  The  facts  were 
all  conceded  by  the  accused  in  open  court.  The  court,  therefore,  after  an  argument 
upon  the  law,  held  that  no  question  was  involved  except  a  pure  question  of  law,  and 
directed  the  jury  to  find  a  verdict  of  guilty,  refusing  to  allow  the  jury  to  be  polled. 
A  motion  in  arrest'  of  judgment  on  account  of  such  direction  and  refusal  was  after 
argument  overruled. 

For  a  quaere  whether  under  the  XVth  Amendment  Congress  can  pass  laws  to 
operate  upon  private  individual?,  see  U.  S.  v.  Souders,  2  Abb.  U.  S.  R.  456,  and  see 


566  PRIVILEGES   AND   IMMUNITIES. 

grant  of  a  co-tenancy  in  the  common  property  of  a  State  to  the 
citizens  of  all  the  other  States ;  and  Mr.  J.  Washington  said,— 

The  inquiry  is,  What  are  the  privileges  and  immunities  of  citizens  in  the 
several  States  1  We  feel  no  hesitation  in  confining  these  expressions  to  those 
privileges  and  immunities  which  are  in  their  nature  fundamental ;  which  belong, 
of  right,  to  the  citizens  of  all  free  governments ;  and  which  have  at  all  times 
been  enjoyed  by  all  the  citizens  of  the  several  States  which  compose  thia  Union, 
from  the  time  of  their  becoming  free,  independent,  and  sovereign.  What  these 
fundamental  principles  are,  it  would,  perhaps,  be  more  tedious  than  difficult  to 
enumerate.  They  may,  however,  be  all  comprehended  under  the  following 
general  heads  :  protection  by  the  Government ;  the  enjoyment  of  life  and  liberty, 
\vith  the  right  to  acquire  and  possess  property  of  every  kind,  and  to  pursue 
and  obtain  happiness  and  safety ;  subject,  nevertheless,  to  such  restraints  as  the 
Government  may  justly  prescribe  for  the  general  good  of  the  whole.  The  right 
of  a  citizen  of  one  State  to  pass  through  or  reside  in  any  other  State,  for  pur- 
poses of  trade,  agriculture,  professional  pursuits,  or  otherwise ;  to  claim  the 
benefit  of  the  writ  of  habeas  corpus ;  to  institute  and  maintain  actions  of  any 
kind  in  the  courts  of  the  State;  to  take,  hold,  and  dispose  of  property,  either 
real  or  personal ;  and  an  exemption  from  higher  taxes  or  impositions  than  are 
paid  by  the  other  citizens  of  the  State — may  be  mentioned  as  some  of  the  par- 
ticular privileges  and  immunities  of  citizens,  which  are  clearly  embraced  by  the 
general  description  of  privileges  deemed  to  be  fundamental  ;  to  which  may  be 
added,  the  elective  franchise,  as  regulated  and  established  by  the  laws  or  Consti- 
tution of  the  State  in  which  it  is  to  be  exercised.  These  and  many  others 
which  might  be  mentioned  are,  strictly  speaking,  privileges  and  immunities ; 
and  the  enjoyment  of  them  by  the  citizens  of  each  State,  in  every  other  State, 
'was  manifestly  calculated  (to  use  the  expression  of  the  preamble  of  the  corre- 

People  v.  Brady,  40  Cal.  198,  where  it  was  decided  that  the  XlVth  Amendment  is 
addressed  alone  to  the  States  in  their  corporate  capacity,  that  its  prohibitory  clauses 
execute  themselves  by  nullifying  adverse  State  legislation,  arid  that  Congress  ob- 
tained no  power  under  it  to  pass  laws  operating  affirmatively  upon  individuals  ;  but 
in  U.  S.  v.  Canter,  2  Bond,  389,  the  act  of  Congress  of  May,  31, 1870  (commonly  called 
the  Force  Bill),  for  punishing  the  interference  by  individuals  with  the  right  of  vot- 
ing, was  held  valid. 

The  following  are  State  decisions  involving  a  construction  of  these  amendments 
and  of  congressional  legislation  based  thereon — the  "  Civil  Rights  Bill "  and  the 
"Force  Bill." 

A  State  statute  prohibiting  intermarriage  between  whites  and  blacks  was  held 
valid  in  Tennessee,  notwithstanding  the  amendments  and  this  legislation.  Doc 
Lomas  v.  State,  3  Heisk.  287.  The  "  Civil  Rights  Bill  "  is  not  violated  by  provisions 
of  municipal  legislation  maintaining  separate  schools  for  whites  and  blacks.  Dallas 
v.  Fosdick,  40  How.  Pr.  249 ;  State  v.  McCann,  21  Ohio  St.  1 98.  In  People  v.  Brady, 
40  Cal.  198,  a  State  statute  prohibiting  the  testimony  of  Chinese  was  held  valid,  so 
much  of  the  "  Civil  Rights  Bill  "  as  was  opposed  to  such  legislation  was  pronounced 
unconstitutional,  and  the  XlVth  Amendment  was  declared  not  applicable  to  the 
statute  which  was  said  to  be  a  valid  police  regulation;  People  v.  Washington,  36 
Cal.  658,  was  overruled. 


PRIVILEGES    AND  IMMUNITIES.  567 

spending  provision  in  the  old  Articles  of  Confederation)  "  the  better  to  secure 
and,  perpetuate  mutual  friendship  and  intercourse  among  the  people  of  the  differ- 
ent States  of  the  Union." 

But  we  cannot  accede  to  the  proposition  which  was  insisted  on  by  the  coun- 
sel, that  under  this  provision  of  the  Constitution  the  citizens  of  the  several 
States  are  permitted  to  participate  in  all  the  rights  which  belong  exclusively  to 
the  citizens  of  any  other  particular  State,  merely  upon  the  ground  that  they  are 
enjoyed  by  those  citizens;  much  less,  that  in  regulating  the  use  of  the  common 
property  of  the  citizens  of  such  State,  the  Legislature  is  bound  to  extend  to  the 
citizens  of  all  the  other  States  the  same  advantages  as  arc  secured  to  their  own 
citizens."  * 

The  Supreme  Court  of  the  United  States  has  said,  without 
determining  the  general  interpretation  of  the  phrase  "  immuni- 
ties and  privileges,"  that  "  according  to  the  express  words  and 
clear  meaning  of  this  clause,  no  privileges  are  secured  by  it 
except  those  which  belong  to  citizenship.  Rights  attached  by 
law  to  contracts  by  the  usage  of  the  place  where  such  contracts 
are  made  or  executed,  wholly  irrespective  of  the  citizenship  of 
the  parties  to  those  contracts,  cannot  be  deemed  privileges  of  a 
citizen."  According  to  the  law  of  Louisiana,  a  community  of 
acquets,  or  gains,  is  created  between  husband  and  wife  when  the 
marriage  is  contracted  within  the  State,  or  when  the  marriage 
is  contracted  out  of  the  State  and  the  parties  afterwards  go 
into  Louisiana  to  live.  But  the  privilege  thus  given  to  the 
wife  does  not  extend,  by  virtue  of  this  clause  in  the  Federal 
Constitution,  to  a  native-born  female  citizen  of  Louisiana  who 
was  married  in  Mississippi,  and  was  domiciled  with  her  hus- 
band during  the  marriage.  Land  acquired  by  the  husband, 
during  the  marriage,  in  Louisiana,  was  held  not  subject  to  the 
Louisiana  law  in  respect  to  the  community  of  acquets  or  gains, 
upon  the  ground  that  the  right  was  one  which  attached  to  the 
contract  of  marriage  which  the  State  of  Louisiana  had  a  right 
to  regulate,  and  was  not  the  personal  right  of  a  citizen.f 

In  New  Jersey,  it  has  been  decided  that  a  tax  laid  upon 
the  agents  of  foreign  insurance  companies  from  other  States, 
doing  business  within  the  State,  does  not  conflict  with  the  Fed- 
eral Constitution  in  this  particular,  both  for  the  reason  that  it 
was  competent  for  the  Legislature  to  impose  a  tax  on  citizens 

*  Corfield  v.  Coryell,  4  Washington's  C.  f  Conner  v.  Elliott,  18  How.  691. 

C.  Reports,  p.  381. 


568  FUGITIVES   FROM   JUSTICE. 

of  other  States  as  a  substitute  for  other  safeguards  of  the  busi- 
ness to  which,  as  non-residents,  they  could  not  be  made  sub- 
ject ;  and  also,  because  corporations,  though  citizens  for  the 
purpose  of  giving  jurisdiction  to  the  Federal  courts,  were  not 
citizens  in  the  ordinary  sense  of  the  word.* 

The  most  important  question,  probably,  that  can  arise  under 
this  clause,  is  that  which  relates  to  the  protection  of  slave  prop- 
erty while  in  transitu  through  .a  free  State  from  one  slave  State 
to  another  slave  State,  or  while  the  owner  is  an  undomiciled 
sojourner  in  a  State  where  slavery  is  absolutely  prohibited,  or 
when  carried  into  a  free  State  from  unavoidable  necessity,  as 
stress  of  weather.  This  grave  and  perplexing  subject  I  have 
already  considered  in  regard  to  the  doctrine  of  comity  between 
the  States ;  f  but  it  presents  itself  in  a  more  difficult  form  under 
this  clause  of  the  Constitution.  As,  however,  the  question  is 
now  under  adjudication  in  our  State  tribunals,  in  a  way  which 
must  bring  it  directly  to  the  cognizance  of  the  Supreme  Court 
of  the  United  States,  where  indeed  it  is  understood  to  have 
been  already  incidentally  discussed,  any  examination  of  it  here 
would  be  premature.  J 

Fugitives  from  Justice.  Art.  iv,  sect.  2,  §  3. — The  provis- 
ion in  regard  to  the  delivery  or  extradition  of  fugitive  criminals 
from  other  States  is  very  often  acted  upon,  but  not  many  de- 
cisions have  been  made  in  regard  to  it.  In  New  Jersey  it  has 
been  said  that,  in  considering  this  clause,  it  is  material  to  ob- 
serve that  it  does  not  contain  a  grant  of  power.  It  confers  no 
right.  It  is  the  regulation  of  a  previously  existing  right.  It 
only  makes  obligatory  upon  every  member  of  the  confederacy, 
the  performance  of  an  act  wrhich  previously  was  of  doubtful 
obligation.  || 

*  Tatem  v.  Wright,  3  Zabriskie,  p.  429.  on  appeal  to  the  Federal  tribunal,  the  case 

f  Ante,  p.  62.    "  will,  in  all  probability,  call  for  a  settlement  of 

\  The  Lemmon  Case,  as  it  is  commonly  the  law  of  this  important  question, 

called,  People  v.  Lemmon,  5  Sandf.  681,  pre-  |  In  the  Matter  of  "William  Fetter,  3  Za- 

sents  the  transit  question  in  one  aspect  dis-  briskie,  p.  315,  where  several  cases  on  the 

tinctly,  and  is  now  before  the  Supreme  Court  subject  are  collected.     On  the  subject  of  this 

of  the  State  of  New  York  on  appeal.     The  clause,  see  also  Ex  parte  Smith,  before  Mr. 

case  known  as  the  Dred  Scott  Case,  recently  Justice  M'Lean,  cited  in  1  Kent  Com.  8th  edit., 

decided  by  the  Supreme  Court  of  the  United  vol.  i,  p.  642.     Also,  In  re  Kaine,  14  Howard, 

States,  is  understood  to  have  incidentally  dis-  103 ;  State  v.  Buzine,  4  Harrington,  572 ;  State 

cussed  this  subject ;  but  we  have  as  yet  no  v.    Schlemn,  4   Harrington,   577 ;   Taylor   v. 

authoritative  report  of  the  judgment  of  the  Taintor,  16  Wall.  366. 
court.     If  the  People  v.  Lemmon  shall  go  up 


FUGITIVES  FROM  SERVICE.  569 

It  "has  been  decided  in  New  York  and  New  Jersey,  that  to 
enable  a  magistrate  to  arrest  and  examine  an  alleged  fugitive 
from  justice  from  another  State,  it  must  be  distinctly  alleged 
by  a  complaint  in  writing,  on  oath,  that  a  crime  has  been  com- 
mitted in  the  foreign  State,  that  the  accused  has  been  charged 
in  such.  State  with  the  commission  of  such  crime,  and  that  he 
has  fled  from  such  State,  and  is  found  here.  These  facts  must 
not  be  left  to  inference.  * 

In  New  York,  it  has  been  said  that  when  a  prisoner  is  brought 
up  on  habeas  corpus,  and  it  appears  that  he  has  been  arrested  as 
a  fugitive  fr,om  justice,  by  a  warrant  from  the  executive  of  one 
State  on  the  requisition  of  the  executive  of  another  State, 
under  the  Constitution  and  laws  of  the  United  States,  the  court 
or  judge  will  not  inquire  into  the  probable  guilt  of  the  accused. 
The  only  inquiry  is,  whether  the  warrant  states  that  the  fugi- 
tive has  been  demanded  by  the  executive  of  the  State  from 
which  he  is  alleged  to  have  fled ;  and  that  a  copy  of  the 
indictment  or  affidavit  charging  him  with  the  crime  and  cer- 
tified by  the  executive  demanding  himv  as  authentic,  has  been 
presented,  f 

It  has  been  decided  in  New  Jersey,  that  if  a  fugitive  from 
justice,  for  whose  delivery  requisition  is  made  under  the  Con- 
stitution of  the  United  States,  be  in  actual  confinement  on 
criminal  or  civil  process  in  the  State  to  which  he  has  fled,  he 
cannot  be  given  up  till  the  justice  of  that  State  be  satisfied. 
The  Constitution  refers  to  fugitives  at  large  only.J 

Fugitives  from  Service.  Art.  iv,  sect.  2,  §  3. — ^This  clause, 
which  has  been  twice  acted  on  by  Congress, — once  in  the  enact- 
ment of  the  fugitive  slave  law  of  1793,  and  once  in  that  of  the 
year  1850, — owing  to  the  organization  of  political  parties  in 
this  countiy,  has  been  a  fertile  source  of  discussion,  of  a  class 
into  which  this  work  is  not  intended  to  enter.  I  confine  my- 
self to  stating  the  most  authoritative  exposition  of  the  subject 
which  has  as  yet  been  made.  There  can  be  no  serious  legal 
question  that  it  is  the  duty  of  all  parts  of  the  Union  to  receive 

*  In  the  Matter  of  Edward  Hey  ward,  1  f  In  the  Matter  of  Clark,  9  Wend.  212. 

Sandford,  701  ;  in  the  Matter  of  William  Fet-          \  In  the  Matter  of  Troutma.n,  4  Zabriskie,. 
ter,  3  Zabriskie,  p.  315.  634. 


570  RELIGIOUS    FREEDOM. 

their  interpretation  of  the  Federal  charter  from  the  Supreme 
Court  of  the  United  States,  and  to  give  to  the  provisions  of  the 
instrument,  as  expounded  by  that  tribunal,  in  the  legitimate 
exercise  of  the  functions  assigned  to  it  by  the  Constitution, 
their  full  and  fair  effect.  It  has  been  decided  then,  by  the 
Supreme  Court,  in  regard  to  the  fugitive  slave  law  of  1793,  1. 
That  under  and  in  virtue  of  the  Constitution  of  the  United 
States,  the  owner  of  a  slave  is  clothed  with  entire  authority,  in 
every  State  in  the  Union,  to  seize  and  recapture  his  fugitive 
slave,  wherever  he  can  do  it  without  illegal  violence  or  a  breach 
of  the  peace.  2.  That  the  Federal  Government  is  .clothed  with 
appropriate  authority  and  functions  to  enforce  the  delivery  of 
a  fugitive  slave  on  claim  of  the  owner,  and  has  properly  exer- 
cised its  authority  in  the  act  of  12th  February,  1793.  3.  That 
any  State  law  or  regulation  which  interrupts,  impedes,  limits, 
embarrasses,  delays,  or  postpones  the  right  of  the  owner  to  the 
immediate  possession  of  the  slave  and  the  immediate  command 
of  his  service,  is  void.* 

Since  this  decision  was  made  upon  the  law  of  1793,  another 
law  on  the  subject  has  been  passed  in  the  year  1850,  giving 
the  master  more  stringent  remedies  for  the  recapture  of  his 
fugitive  slave.  No  question  in  regard  to  it  has  as  yet  been  de- 
cided by  the  Supreme  Court  of  the  United  States,  thpugh  its 
constitutionality  has  been  generally  supposed  to  be  disposed  of 
by  the  judgment  above  cited.f  In  the  State  of  Wisconsin, 
however,  its  constitutionality  has  been  denied,  in  an  elaborate 
judgment,  on  the  ground  that  the  article  of  the  Constitution  on 
which  the  law  is  based  is  merely  a  clause  of  compact  between 
the  States,  by  which  the  free  States  are  bound  to  provide 
proper  legislation  for  the  return  of  fugitive  slaves,  but  confer- 
ring no  power  on  the  Federal  Government.^! 

Religious  Freedom.     Amendments,  art.  i. — The    Constitu- 

*  Prigg  v.  The  Commonwealth  of  Penn-  Court  of  Massachusetts,  in  the  Case  of  Sims, 

sylvania,  16  Pet.  540;  Moore  v.  The  People  Law  Reporter,  vol.  iv,  N.  S.  p.  17,  per  Shaw, 

of  the  State  of  Illinois,  14  How.  U.  S.  13.  C.   J.      The   constitutionality   of  the   act  of 

In  New  York,   on    the    subject   of   this  1850  was  also   assumed  in  the  case  of  the 

clause,  see  Jack  v.    Martin,   12   Wend.  311;  United  States  v.  Stowell,  an  indictment  for 

s.  c.  14  Wend.  507 ;  in  Massachusetts,  Com-  obstructing  the   marshal  in  the  service   of 

monwealth  v.    Tracy,    5   Metcalf,   536;    and  process  under  the  act.     2  Curtis,  153. 
Kent  Com.  vol.  i,  p.  641,  8th  edition.  \  Duer,  Cons.  Jurisprudence,  p.  271. 

f  So  it  was   declared  by   the    Supreme 


FREEDOM   OF  SPEECH.  571 

* 

tion  contains  no  more  important  clause  than  that  prohibiting 
all  laws  prescribing  religious  tests,  establishing  religion,  or  in- 
terfering with  its  free  exercise ;  and  fortunately,  thus  far,  the 
wise  spirit  of  our  people  has  come  up  to  the  sagacity  and  fore- 
sight of.  our  ancestors.  If  in  our  future  history  our  political 
toleration  shall  keep  pace  with  our  moderation  and  forbearance 
in  religious  matters,  we  may  hope  to  escape  the  evils  that  have 
thus  far  proved  so  formidable,  indeed  so  fatal,  to  all  free  Gov- 
ernments. It  may  be  remarked,  however,  that  the  recent  or- 
ganization of  a  distinct  territorial  Government  about  to  claim 
admission  as  a  State,  exclusively  occupied  by  settlers  who  de- 
clare polygamy  to  be  one  of  their  fundamental  institutions, 
presents  the  problems  connected  with  this  matter  in  a  new 
aspect,  and  will  undoubtedly  put  our  principle  of  absolute 
toleration  to  a  very  severe  test. 

Freedom  of  Speech  and  of  the  Press.  Amendments,  art.  i. 
— The  only  important  questions  that  have  been  raised  on  this 
clause,  grew  out  of  the  act  of  14th  July,  1798,  c.  91,  commonly 
called  the  Sedition  Act,  making  it  penal  to  publish  false,  scan- 
dalous, and  malicious  writings  against  the  Government  of  the 
United  States.  The  act  was  extremely  unpopular,  and  was  one 
of  the  causes  of  the  downfall  of  the  Federal  party.  The  Con- 
stitutional question  has  never  been  settled ;  and  it  may  be 
again  agitated,  in  a  different  state  of  the  public  mind.* 

Search-warrants  and  Seizures.  Amendments,  art.  iv. — 
The  controversy  in  regard  to  general  warrants,  which,  in  1763, 
were  pronounced  in  England  to  be  illegal  and  void  for  uncer- 
tainty^ was  very  familiar  to  the  mind  of  the  framers  of  our 
Government ;  and  their  consideration  of  the  subject  led  to  the 
insertion  of  this  and  the  analogous  clauses  in  the  State  and 
Federal  Constitutions.  The  only  serious  controversy  that  has 
arisen  in  regard  to  them,  grew  out  of  the  Alien  Act  of  1798, 
ch.  75,  which  authorized  the  President  o'f  the  United  States  to 
order  all  dangerous  aliens  out  of  the  republic,  and  in  case  of 
their  refusal  to  comply  with  the  order  to  depart,  to  imprison 

*  See  the  Virginia  Report  and  Resolutions  in  1799  ;  2  Tucker's  Black.  Comm.  app.  note 

of  the   Virginia   Legislature,    in   December,  a,  pp.  11  to  30. 

1798,  and  January,  1800;  Resolution  of  the          f  Money  v.  Leach,  3  Burr.   1743;  Bell  v. 

Legislature  of  Massachusetts  and  Kentucky  Clapp,  10  J.  R.  263;  Sailly  v.Smith,HJ.  R.600. 


572  ONLY  ONE  TRIAL  FOR  CRIMES. 

them.*  The  Alien  Act  shared  the  fate  of  the  Sedition  Act  in  its 
unpopularity,  but  the  question  of  its  constitutionality  is  still 
open.  It  has  been  held  under  this  clause,  that  a  search-warrant 
to  be  legal  must  state  the  time,  place,  and  nature  of  the  offence 
charged,  with  reasonable  certainty.f 

Only  one  Trial  for  Offences,  (a)  Amendments,  art.  v. — 
"The  jeopardy  spoken  of  in  this  clause,"  said  Washington,  J.r 
"  can  be  interpreted  to  mean  nothing  short  of  the  acquittal  or 
conviction  of  the  prisoner,  and  the  judgment  of  the  court 
thereupon."  By  this  provision  a  party  is  absolutely  protected 
from  being  tried  a  second  time,  after  he  has  been  once  con- 
victed or  acquitted.  Mr.  J.  Story  has  said,  on  the  first  circuit, 
"  Upon  the  most  mature  deliberation,  I  am  of  opinion  that  the 
court  (the  C.  C.  U.  S.)  does  not  possess  the  power  to  grant  a 
new  trial,  in  a  case  of  a  good  indictment,  after  trial  by  a  com- 

*  See  1  Tucker's  BL  Com.  app.  301  to  304.  f  Exparte  Burford,  3  Cranch,  448. 

(a)  Constitutional  Provisions. — The  following  are  all  the  provisions  in  the  exist- 
ing State  Constitutions : 

No  person  shall  for  the  same  offence  be  twice  put  in  jeopardy  of  [his]  life  or 
limb. — Alabama,  I,  11;  Delaware,  I,  8;  Kentucky,  XIII,  14;  Maine,  I,  8;  Pennsyl- 
vania, IX,  10 ;  Tennessee,  I,  10.  No  person  shall  be  [subject  to  be]  twice  put  in 
jeopardy  [of  life  or  liberty,  West.  Va.]  for  the  same  offence. —  California,  I,  8  ;  Flor- 
ida, Dec.  of  R.  9 ;  Illinois,  II,  10 ;  Indiana,  I,  14 ;  Kansas,  Bill  of  R.  10  ;  Nevada,  I, 
8 ;  New  York,  I,  6  ;  Ohio,  I,  10 ;  Oregon,  I,  12 ;  West  Virginia,  III,  5.  No  person 
shall  after  acquittal  [upon  the  merits,  Mich.]  be  tried  for  the  same  offence. — Iowa,  Ir 
12;  Michigan,  VI,  29;  New  Jersey,  I,  10;  Rhode  Island,  I,  7.  No  person  for  the 
same  offence  shall  be  put  twice  in  jeopardy  of  punishment. — Minnesota,  1, 7  ;  Nebraska, 
I,  8  ;  Wisconsin,  I,  8.  No  person  after  having  been  once  acquitted  by  a  jury,  for  the 
same  offence  shall  be  again  put  in  jeopardy  of  life  or  liberty;  but  if  in  any  criminal 
prosecution  the  jury  be  divided  in  opinion,  the  court  before  whom  the  trial  may  be 
had,  may  in  its  discretion  discharge  the  jury,  and  commit  or  bail  the  accused  for 
trial  at  the  same  or  next  term  of  said  court. — Arkansas,  I,  9 ;  [at  the  next  term  of 
said  court]  Missouri,  I,  19.  No  person  shall  be  put  in  jeopardy  of  life  or  liberty 
more  than  once  for  the  same  offence,  save  on  his  or  her  own  motion  for  a  new  trial 
after  conviction,  or  in  case  of  mistrial. —  Georgia,  I,  8.  The  accused  *  *  .  *  shall 
not  be  tried  twice  for  the  same  offence. — Louisiana,  I,  6.  No  person's  life  or  liberty 
shall  be  twice  placed  in  jeopardy  for  the  same  offence. — Mississippi,  I,  5.  No  subject 
shall  be  liable  to  be  tried  after  an  acquittal  for  the  same  crime  or  offence. — New 
Hampshire,  Pt.  I,  16.  No  person,  after  having  been  once  acquitted  by  a  jury,  shall 
again  for  the  same  offence  be  put  in  jeopardy  of  his  life  or  liberty. — South  Carolina, 
I,  18.  No  person  for  the  same  offence  shall  be  twice  put  in  jeopardy  of  life,  nor 
shall  a  person  be  again  put  upon  trial  for  the  same  offence  after  a  verdict  of  not 
guilty.  —  Texas,  I,  12. 


ONLY  ONE  TRIAL  FOR  CRIMES.  573 

potent  and  regular  jury,  whether  there  be  a  verdict  of  acquittal 
or  conviction."  *  The  rule  does  not  apply,  however,  to  cases 
where  the  jury  disagree  and  are  discharged,  or  where  judgment 
is  arrested,  or  a  new  trial  granted  in  favor  of  the  prisoner. 
There  must  be  a  good  trial.  So,  insanity  of  one  of  the  jurors 
is  a  good  cause  for  discharging  the  jury  without  the  consent  of 
the  prisoner  or  of  his  counsel.  Such  discharge  is  in  the  discre- 
tion of  the  court,  and  cannot  form  the  subject  of  a  plea  in  bar 
to  the  further  trial  of  the  prisoner.  («) 

*  United  States  v.  Gilbert,  2  Sumner,  60 ;  The  People  v.  Comstock,  8  Wend.   549 ;  The 

Davis,  J.,  dissented.     United  States  v.  Has-  The  People  v.  Stone,  5  Wend.  39. 
kell  &  Francois,  4  Wash.  C.  C.  R.  402,  410 ;  In  Massachusetts  the  Court  has  power  to 

United  States  v.  Perez,  9  Wheat.   579  ;  Com-  grant  a  new  trial  on  the  motion  of  one  con- 

monwealth  v.  Cook,  6  S.  and  Rawle,   577 ;  1  victed  of  a   capital   offence,  sufficient   cause 

Dever.  276 ;  United  States  v.  Gilbert,  2  Sum-  being  shown  for  it.    Commonwealth  v.  Green, 

ner,  60;  United  States  v.  Daniel,  6  Wheat.  17  Mass.  515. 
542;  The  People  v.  Goodwin,  18  J.  R.  187; 

(a)  Jeopardy. —  When  the  Jeopardy  begins. — When  the  parties  are  at  issue  upon  a 
valid  indictment,  in  a  court  of  competent  jurisdiction,  and  the  proceedings  have  been 
regular  to  that  point,  the  jeopardy  has  begun.  Grogan  v.  State,  44  Ala.  9 ;  Morgan 
v.  State,  13  Ind.  215.  And  a  person  is  in  complete  jeopardy,,  as  a  general  rule,  when 
the  foregoing  acts  having  taken  place,  a  jury  has  been  impaneled  and  sworn  to  try 
him.  lUd. ;  People  v.  McGowan,  17  Wend.  386  ;  State  v.  Nelson,  26  Ind.  366  ;  Com- 
monwealth v.  Tuck,  20  Pick.  356 ;  People  v.  Webb,  38  Cal.  467 ;  People  v.  Cook,  10 
Mich.  164 ;  State  v.  Callendine,  8  Iowa,  288. 

But  when  the  tribunal  has  no  jurisdiction  there  is  no  jeopardy.  Flournoy  v.  State, 
16  Tex.  30 ;  O'Brian  v.  State,  12  Ind.  369  ;  People  v.  Tyler,  7  Mich.  161.  Nor  where 
it  has  no  final  jurisdiction.  State  v.  Hodgkins,  42  N.  H.  474.  Nor  where,  there 
being  concurrent  jurisdiction  with  a  superior  court,  the  magistrate  had  power  to 
sentence  or  bind  over,  and  he  adjudged  the  prisoner  guilty,  but  only  bound  him  over 
to  the  higher  court.  Commonwealth  v.  Boyle,  14  Gray,  3 ;  Commonwealth  Y.  Many, 
14  Gray,  82. 

When  the  former  prosecution  was  got  up  by  collusion  between  the  accused  and 
the  prosecutors  to  screen  him  from  punishment,  the  proceedings  are  in  fraud  of  the 
law,  and  constitute  no  jeopardy.  State  v.  Reed,  26  Conn.  202  ;  State  v.  Green,  16 
Iowa,  239 ;  Commonwealth  v.  Alderman,  4  Mass.  477. 

Notwithstanding  the  foregoing  general  rule,  it  is  settled  that  even  after  all  the 
facts  contemplated  by  the  rule  have  existed,  the  jury  may  still  he  discharged,  and  a 
new  trial  will  not  thereby  be  barred  ;  in  other  words,  although  the  jeopardy  may  have 
begun,  yet  it  is  not  complete  within  the  constitutional  provision.  The  jury  may  thus 
be  discharged,  and  a  new  trial  had  in  the  following  cases  : 

Inability  of  the  Jury  to  agree.  Dobbins  v.  State,  14  Ohio,  N.  S.  493  (a  capital 
case)  ;  Moseley  v.  State,  33  Tex.  671  ;  State  v.  Crane,  4  Wise.  400;  Williford  v.  State, 
23  Geo.  1;  State  v.  Walker,  26  Ind.  346  ;  State  v.  Nelson,  Ib.  366;  State  v.  Prince, 
63  N.  C.  529 ;  Winsor  v.  Regina,  L.  R.  1  Q.  B.  289 ;  but  see  Miller  v.  State,  8  Ind. 
325  ;  Reese  v.  State,  11.  416. 

Sickness  of  a  juror  or  of  the  judge.    Atkins  v.  State,  16  Ark.  568;  Lee  v.  State, 


574  DUE   PROCESS  OF   LAW. 

Due  Process  of  Law.     Amendments,  art.  v. — It  seems  to 
be  now  well  settled  that  these  words  are    equivalent  to  the 

26  Ark.  260;  Commonwealth  v.  Fells,  9  Leigh,  613;    Hector  v.  State,  2  Mo.  166; 
Nugent  v.  State,  4  Stew.  &  Port.  72 ;  but  see  Rulo  v.  State,  19  Ind.  298. 

Ending  of  the  term  without  a  verdict.  State  v.  Tilletson,  7  Jones  Law,  114; 
State  v.  Battle,  7  Ala.  259 ;  Mahala  v.  State,  10  Yerg.  532 ;  per  contra,  see  Wright  v. 
State,  5  Ind.  290. 

Misconduct  of  Jurors.     McKenzie  v.  State,  26  Ark.  334. 

Defect  of  Indictment.  When,  from  defect  of  indictment,  or  by  variance  between 
proof  and  indictment,  a  conviction  cannot  be  sustained,  and  the  jury  is  discharged, 
or  the  prisoner  is  acquitted,  there  is  no  jeopardy.  People  v.  McNealy,  17  Cal.  332 ; 
People  v.  Cook,  10  Mich.  164 ;  Kohlheimer  v.  State,  39  Miss.  548 ;  Black  v.  State,  36 
Geo.  447  ;  Mount  v.  Commonwealth,  2  Duv.  (Ky.)  93  ;  State  v.  Kason,  20  La.  Ann.  48. 

Where  a  jury  was  sworn  by  inadvertence,  but  dismissed  before  arraignment,  there 
was  no  jeopardy.  TJ.  S.  v.  Riley,  5  Blatch.  C.  C.  204. 

It  is  always  within  the  discretion  of  the  court  to  discharge  the  jury,  and  abuse 
must  be  shown.  Price  v.  State,  36  Miss.  531 ;  Barrett  v.  State,  35  Ala.  406  ;  Hoffman 
v.  State,  20  Md.  425.  And  in  case  of  a  misdemeanor,  even  the  improper  discharge  of 
the  jury  is  not  equivalent  to  an  acquittal.  Regina  v.  Cbarlesworth,  1  B.  &  S.  460. 

It  is  now  settled  that  after  a  conviction,  a  new  trial,  obtained  at  the  instance  of 
the  accused,  is  not  a  second  jeopardy.  State  v.  Behimer,  20  Ohio,  N.  S.  572.  Or 
when  the  proceedings  are  set  aside,  on  objection  of  the  accused,  for  irregularity  or 
defect  in  law.  People  v.  Olwell,  28  Cal.  456;  Younger  v.  State,  2  W.  Va.  579.  And 
in  case  of  reversal  for  defective  verdict  and  unauthorized  sentence,  there  may  be  a 
new  trial.  Turner  v.  State,  40  Ala.  21 ;  Jeffries  v.  State,  40  Ala.  381 ;  State  v.  Red- 
man, 17  Iowa,  329.  But  where  the  proceedings  are  regular  until  the  sentence,  and  a 
wrong  sentence  is  pronounced,  and  judgment  is  in  consequence  reversed,  there  can 
be  no  new  trial.  Shepherd  v.  People,  25  N.  Y.  406 ;  Lowenberg  v.  People,  27  N.  Y. 
336 ;  Hartung  v.  People,  26  K  Y.  167 ;  Elliott  v.  People,  13  Mich.  365. 

The  accused  may  waive  his  right  to  object  to  the  discharge  of  the  jury.  Mc- 
Corkle  v.  State,  14  Ind.  39 ;  Morgan  v.  State,  3  Sneed,  475 ;  Hughes  v.  State,  35 
Ala.  351. 

The  accused  has  a  right  to  have  the  proceedings  go  on  unless  good  cause  is  shown 
for  the  delay,  and  &nolle  prosequi  entered  by  the  prosecuting  officer  because  he  cannot 
procure  sufficient  evidence,  will  operate  as  an  acquittal.  State  v.  Stebbins,  29  Conn. 
463.  When  on  a  trial  for  an  assault  with  intent  to  murder,  after  the  impaneling  of 
a  jury  a  nolle  prosequi  as  to  the  intent  to  murder  was  entered  by  the  prosecuting 
officer  without  consent  of  the  accused,  this  was  held  equivalent  to  an  acquittal  of 
that  part  of  the  charge.  Baker  v.  State,  12  Ohio,  N.  S.  214.  Discharge  in  bastardy 
proceedings  by  reason  of  failure  of  relator  to  appear,  held  no  bar  to  subsequent  pro- 
ceedings. State  v.  Barbour,  17  Ind.  526.  A  discharge  on  a  preliminary  examination 
is  a  bar  to  a  subsequent  information,  in  Michigan.  Morrissey  v.  People,  11  Mich. 
327.  It  is  held,  in  Kentucky,  that  when  an  indictment  is  dismissed  with  consent  of 
the  court,  even  after  the  jury  is  sworn  and  impaneled,  there  is  no  jeopardy,  because 
there  has  been  no  trial.  Wilson  v.  Commonwealth,  3  Bush  (Ky.)  105 ;  but  this  is 
clearly  opposed  to  the  general  course  of  decisions  as  shown  by  the  cases  before  cited. 

Where  on  an  indictment  for  murder  the  prisoner  was  convicted  of  manslaughter, 
and  the  verditt  was  set  aside  on  his  objection,  it  was  held  that  he  could  not  be  tried 


'.fl/Tn*.     '•"£ 
DUE  PROCESS  OF  LAW. 


£*r;«9 


phrase  "  law  of  the  land,"  which  we  have  elsewhere  examined, 
and  the  value  of  which,  under  our  State  Constitutions,  as  one 
of  the  most  important  fundamental  guaranties  of  individual 

* 

again  for  murder,  as  he  had  virtually  been  acquitted  of  that  charge,  but  might  be 
tried  for  manslaughter.  People  v.  Gilmore,  4  Cal.  376 ;  see  Livingston's  Case,  14 
Gratt.  592  ;  State  v.  Ross,  29  Mo.  32  ;  State  v.  Tweedy,  11  Iowa,  350  ;  Guenther  v. 
People,  24  N.  Y.  100;  State  v.  Kuttleman,  35  Mo.  105;  State  v.  Martin,  30  Wise.  216; 
but  per  contra,  see  State  v.  Behimer,  20  Ohio,  N.  S.  572.  Where  there  has  been  an 
acquittal  on  one  count  of  an  indictment  charging  a  crime,  there  may  be  a  subsequent 
trial  on  another  count  charging  an  attempt  to  commit  such  crime.  Major  v.  State, 
4  Sneed,  597.  An  acquittal  must  be  upon  an  indictment  sufficient  in  law,  or  it  is  no 
bar.  Black  v.  State,  36  Geo.  447.  But  if  the  indictment  is  good,  acquittal  will  be 
a  bar,  although  obtained  on  motion  on  the  ground  of  alleged  defect  in  the  indict- 
ment. Ibid. ;  and  see  State  v.  Elden,  41  Me.  165,  where  it  was  held  that  if  thsre  had 
been  a  verdict  of  guilty,  though  the  indictment  was  dismissed  and  the  prisoner  dis- 
charged, it  was  a  bar. 

Where  an  indictment  stands  good  by  reason  of  the  accused  not  having  seasonably 
taken  advantage  of  its  defects,  e.  g.,  by  demurrer,  he  is  in  jeopardy,  and  an  acquittal 
is  a  bar  although  the  indictment  would  have  been  adjudged  defective  on  demurrer. 
State  v.  Reed,  12  Md.  253.  Where  the  prosecut'on  is  put  to  an  election  between  two 
counts,  and  elects  to  proceed  on  a  count  which  is  bad  and  is  quashed,  and  a  nolle 
prosequi  is  entered  as  to  the  other  count,  the  accused  has  not  been  in  jeopardy,  since 
by  the  election  he  never  was  on  trial  on  the  good  counts.  Joy  v.  State,  14  Ind. 
139. 

It  seems  the  accused  cannot  be  punished  twice  for  the  same  offence,  once  under  a 
city  ordinance  and  once  under  the  general  law.  State  v.  Cowan,  29  Mo.  330 ;  but  see 
Waldo  v.  Wallace,  12  Ind.  569.  But  though  not  twice  punishable  for  the  same 
offence,  a  person  may  be  twice  punished  for  the  same  act  if  it  constitutes  two 
offences,  e.  g.,  keeping  a  tippling  house,  and  being  a  common  seller.  State  v.  Inness, 
53  Me.  536.  The  same  act  may  be  an  offence  against  the  State  and  the  United 
States,  and  an  acquittal  by  a  court  martial  is  no  bar  to  a  trial  before  a  State  court. 
State  v.  Rankin,  4  Cold.  (Tenn.)  145.  - 

The  provision  of  the  Constitution  against  inflicting  punishment  twice  for  the 
same  offence  is  not  violated  by  an  act  allowing  the  recovery  of  punitive  damages  by 
the  personal  representatives  of  a  person  killed  by  negligence,  in  addition  to  the 
criminal  liability.  Chiles  v.  Drake,  2  Mete.  (Ky.)  146.  A  person  cannot  be  prose- 
cuted for  the  larceny  of  part  of  the  articles  taken  at  one  time,  and  afterwards  tor  the 
larceny  of  the  rest.  Jackson  v.  State,  14  Ind.  327. 

An  act  giving  the  State  the  right  of  appeal  after  conviction,  is  void.  State  v.  Yan 
Horton,  26  Iowa,  402.  For  a  statement  of  the  general  object  of  the  constitutional 
provision  and  of  the  common  law  maxim,  see  Ex  parte  Lange,  18  Wall.  163. 

As  to*  legal  identity  of  offences,  see  Wilson  v.  State,  24  Conn.  57 ;  State  v.  Nutt,  28 
Vt.  598;  State  v.  Wightman,  26  Mo.  515;  State  v.  Stanley,  4  Jones  Law,  290;  Com- 
monwealth v.  Keefe,  7  Gray,  332 ;  State  v.  Keogh,  13  La.  Ann.  243 ;  State  v.  Andrews, 
27  Mo.  267;  People  v.  Saunders,  4  Park.  Cr.  196;  People  v.  Krummer,  Ib.  217; 
Wininger  v.  State,  13  Ind.  540;  State  v.  Lindley,  14  Ind  430;  State  v.  Warner,  14 
Ind.  572  ;  Commonwealth  v.  Lahy,  8  Gray,  459  ;  Commonwealth  v.  Hudson,  14  Gray, 
11;  Commonwealth  v.  Bubser,  14  Gray,  83;  Commonwealth  v.  Shea,  14  Gray,  886; 
Foster  v.  State,  39  Ala.  229;  Dominick  v.  State,  40  Ala.  680. 


57G  LAW   OF  THE  LAND. 

rights,  we  have  already  endeavored  to  state  and  to  explain.* 
And  so  it  has  been  expressly  determined. 

In  Rhode  Island,  on  the  first  circuit,  Mr.  Justice  Curtis  has 
decided  under  the  Constitution  of  that  State,  that  the  phrase 
"  law  of  the  land,"  is  equivalent  to  "  due  process  of  law,"  and 
that  in  it  is  necessarily  implied  and  included  the  right  to  an* 
swer  to  and  to  contest  the  charge,  and  the  consequent  right  to 
be  discharged  from  it,  unless  it  be  proved ;  and  where  a  law  of 
the  State  of  Rhode  Island,  passed  in  1852,  designed  to  prevent 
the  sale  of  intoxicating  liquors,  required  the  accused,  before  he 
could  answer  to  or  contest  the  charge,  to  give  security  in  the 
sum  of  two  hundred  dollars,  with  sureties  to  pay  all  fees  and 
costs  adjudged  against  him,  it  was  held  that  this  provision  con- 
.  flicted  with  the  Constitution,  and  rendered  the  law  void,  f 

In  1853  the  State  of  Rhode  Island  passed  another  act,  en- 
titled "  An  act  for  the  more  effectual  suppression  of  drinking 
houses  and  tippling  shops,"  authorizing  a  seizure  of  the  prop- 
erty ;  but  because  it  did  not  provide  for  notice  to  the  owner, 
by  due  legal  means,  of  the  nature  and  cause  of  the  accusation, 
nor  for  a  trial  of  the  question  whether  the  liquors  seized  were 
held  for  sale  in  violation  of  law,  the  act  was  declared  to  violate 
the  Constitution  of  the  State ;  and  this  decision  was  adhered  to 
and  acted  upon  in  the  United  States  Circuit  Court,  by  Mr.  Jus- 
tice Curtis,  on  the  ground  that  it  belongs  to  the  highest  judicial 
tribunal  of  a  State  to  interpret  its  Constitution,  and  to  deter- 
mine how  far  and  in  what  respects  any  act  of  the  Legislature  is 
in  conflict  therewith,  and  therefore  inoperative. J  A  full  and 
careful  examination  of  the  decisions  of  our  courts  upon  the 
various  temperance  laws  of  the  different  States,  would  be  of 
extreme  interest,  as  exhibiting  the  operation  of  our  system  of 
constitutional  law,  and  particularly  of  this  most  important 
clause. 

But  there  are  exceptions  to  the  universal  application  of  the 
rule  giving  to  persons  in  all  cases  the  benefit  of  this  construc- 
tion of  the  constitutional  guaranty  of  the  law  of  the  land.  The 
Supreme  Court  has  said  that  though  the  words  due  process  of 

*  Story  on  Cons.  §  1*789.  \  Greene  v.  James,  2  Curtis,  189 ;  Webster 

f  Greene  v.  Brings,  1  Curtis,  311.  v.  Cooper,  14  Howard,  488. 


TRIAL   BY   JURY.  577 

law  generally  imply  and  include  actor,  reus,judex,  regular  alle- 
gationS7 opportunity  to  answer,  and  a  trial  according  to  some 
settled  course  of  judicial  proceedings, — this  is  not  universally 
true.  To  ascertain  whether  any  proceeding  is  due  process  of 
law,  the  Constitution  itself  is  first  to  be  examined  to  see 
whether,  any  of  its  provisions  be  disregarded,  and  if  not,  then 
we  must  look  to  the  settled  usages  and  modes  of  proceeding 
existing  in  the  common  and  statute  law  of  England  at  the  time 
of  the  emigration  of  our  ancestors ;  and  following  this  train  of 

o  *  o 

reasoning,  it  has  been  decided  that  a  distress- warrant  against  a 
defaulting  collector  of  the  revenue,  is  not  inconsistent  with  the 

O  / 

provision  which  prohibits  a  citizen  from,  being  deprived  of  his 
property  without  due  process  of  law,  upon  the  ground  that  the 
ancient  common  law  of  England  recognized  a  summary  remedy 
for  the  recovery  of  debts  due  the  Government.* 

Compensation  for  Private  Property.  Amendments,  art.  v.— 
In  regard  to  the  State  Constitutions,  we  have  already  considered 
this  important  subject  elsewhere.  This  clause  in  the  Federal 
charter,  like  all  the'  other  amendments  to  the  instrument,  has 
been  adjudged  by  the  Supreme  Court  to  apply  only  to  the 
Government  of  the  United  States,  and  to  have  no  operation  on 
the  State  Governments,  f 

Trial  by  Jury.  Amendments,  art.  vi  and  vii. — The  right  of 
trial  by  jury  under  the  Constitution  of  the  United  States  is 
secured  by  three  provisions,  to  be  found  in  the  second  section 
of  the  third  article,  and  the  sixth  and  seventh  amendments. 
The  two  former  of  these  relate  to  criminal  cases ;  the  latter,  to 
civil  causes.  "  One  of  the  strongest  objections  originally  taken 
to  the  Constitution  of  the  United  States,"  says  the  Supreme 
Court  of  the  United  States, %  "  was  the  want  of  an  express  pro- 
vision securing  the  right  of  trial  by  jury  in  civil  cases."  This 
gave  rise  to  the  seventh  amendment. 

The  provision  has  been  frequently  applied.     So,  where  a 

*  Murray's  Lessee  v,  Hoboken  Land  and  ernment ; "  see  also,  as  to  this  clause,  Green 

Improvement  Co.  where  the  subject  is  elabo-  v.  Biddle,  8  Wheat.  89.   Mitchell  v.  Harmony, 

rately  examined  by  Curtis,  J.,  18  Howard,  272.  13  Howard,  115,  discusses  the  question  as  to 

f  Barron  v.  Mayor,  <fec.  of  Baltimore,  7  the  extent  of  the  power  of  a  military  corn- 
Peters,  250.  "The  amendments,"  says  Mar-  mander  to  take  private  property  in  time  of 
shall,  C.  J. ,  "  contain  no  expression  indicating  war. 

an  intention  to  apply  them  to  the  State  Gov-          \  Parsons  v.  Bedford,  3  Peters,  446. 
37 


578  TRIAL  BY  JURY. 

law  of  Ohio  declared  that  an  occupying  claimant  of  land 
should  not  be  turned  out  of  possession  till  he  should  be  paid 
for  lasting  and -valuable  improvements,  and  directed  the  court 
in  a  suit  at  law  to  appoint  commissioners  to  value  the  improve- 
ments, it  was  held  that  this  came  within  the  provisions  of  the 
seventh  amendment,  and  that  the  law  was  unconstitutional  and 
void.  * 

It  has  been  held,  too,  by  the  Supreme  Court  of  the  United 
States,  that  this  clause  embraces  all  suits  not  of  equity  or  admi- 
ralty jurisdiction,  and  that  it  applies  to  the  proceedings  prac- 
ticed in  Louisiana  on  the  trial  of  causes  by  a  jury,  though 
peculiar  and  not  according  to  the  course  of  the  common  law.f 

Indeed,  as  I  have  had  occasion  to  notice  in  speaking  of  the 
operation  of  the  analogous  clause  under  the  State  Constitu- 
tions, the  provision  has  been  generally  very  liberally  construed. 
So,  it  has  been  intimated  that  a  court  of  equity  cannot  order 
the  complainant  and  his  sureties  on  an  injunction  bond,  to  pay 
the  damages  sustained  by  reason  of  the  injunction,  on  the 
ground  that  an  action  on  a  bond  is  in  its  nature  a  suit  at  com- 
mon law.  £  So,  again,  it  has  been  decided  that  to  subject  the 
right  of  trial  by  jury  to  any  condition,  is  incompatible  with 
the  nature  of  the  constitutional  guaranty.  Consequently, 
where  a  law  designed  to  prevent  the  sale  of  intoxicating 
liquors,  required  the  party  accused  to  give  security  for  the 
'payment  of  the  penalty  and  costs  awarded  by  the  act  for  its 

*  Bank  of  Hamilton  v.  Dudley's  Lessee,  2  to  the  demands  of  a  creditor  must  always  de- 
Peters,  493.  This  case  is  also  of  much  inter-  pend  upon  the  wisdom  of  the  Legislature." — 
est,  on  the  subject  of  repeal  and  vested  rights.  P.  523. 

In  1795  the  Territorial  Government  of  Ohio  f  Parsons  v.  Bedford,  3  Peters,  447.  In 
created  an  Orphan's  Court,  and  authorized  the  State  of  Louisiana,  the  principles  of  the 
the  administrator  of  a  decedent  to  sell  the  common  law  are  not  recognized ;  neither  do 
real  estate,  when  there  was  not  a  sufficient  the  principles  of  the  civil  law  of  Rome  fur- 
personal  estate  to  pay  the  debt.  In  May,  nish  the  basis  of  their  jurisprudence.  They 
1804,  an  administrator  obtained  an  order  to  have  a  system  peculiar  to  themselves,  adopted 
sell  under  this  statute.  In  June,  1805,  the  by  their  statutes,  which  embodies  much  of 
act  of  1795  was  repealed.  In  August,  1805,  the  civil  law,  some  of  the  principles  of  the 
an  order  was  entered  enlarging  the  adminis-  common  law,  and,  in  a  few  instances,  the  stat- 
trator's  power  to  sell,  and  entered  nunc  pro  utory  provisions  of  other  States.  This  sys- 
tunc,  as  of  May,  and  a  sale  took  place  ;  but  it  tern  may  be  called  the  civil  law  of  Louisiana, 
was  held  bad.  It  was  urged  that  the  interest  and  is  peculiar  to  that  State.  Mr.  J.  M'Lean's 
of  the  administrators  in  the  real  estate  was  a  dissenting  opinion  in  Parsons  v.  Bedford,  3 
vested  interest,  and  that  the  repeal  of  the  law  Peters,  450. 

could  not  divest  it.     But  the  court  said  that  \  Merryfield  v.   Jones,  2  Curtis,  p.  306. 

the  repeal  divested  no  vested  estate,  that  it  See  on  this  point,  Hiriart  v.  Ballon,  9  Peters, 

was  only  "  the  exercise  of  a  legislative  power  156  ;  Gwin  v.  Breedlove,  2  How.  29 ;  Gwin  v 

such   as  every   Legislature  possesses.     The  Barton,   6   Howard,   7;    Bein  v.   Heath,  12 

mode  of  subjecting  the  property  of  a  debtor  Howard,  168. 


TRIAL  BY   JURY.  579 

violation,  as  a  condition  of  having  a  jury  trial,  it  has  been  de- 
cided by  Mr.  Justice  Curtis,  on  the  Ehode  Island  Circuit,  that 
this  provision  conflicted  with  the  Constitution  of  that  State, 
which  declares  that  the  right  of  trial  by  jury  shall  be  inviolate, 
and  rendered  the  whole  act  unconstitutional  and  void.* 

The  general  rule  of  the  courts  of  the  United  States  is,  that 
on  the  trial  of  causes  the  court  may  give  their  opinion  on  the 
evidence  to  the  jury,  being  careful  to  distinguish  between 
matter  of  law  and  matters  of  fact.  In  regard  to  the  former, 
the  opinion  of  the  court  is  conclusive ;  but  a  mere  opinion  on 
the  facts  has  only  such  influence  as  the  jury  may  think  it  enti- 
tled to.  f  But,  as  has  been  heretofore  observed,  J  there  is  a 
diversity  of  practice  in  the  different  States  on  this  subject ; 
and  it  has  been  intimated  that  in  those  States  where  the  rule 
is  to  confine  the  charge  strictly  to  questions  of  law,  it  will  be 
well  for  the  judges  of  the  Federal  tribunals  to  conform  to  it, 
for  the  general  reason  that  it  is  desirable  that  the  practice  in 
the  courts  of  the  United  States  should  resemble  as  near  as 
practicable  that  of  the  States  in  which  they  are  sitting.  | 

In  criminal  cases,  it  has  been  earnestly  insisted  that  the 
jury  are  the  judges  of  the  law,  as  well  as  of  the  fact,  and  that 
the  opinion  of  the  court  on  questions  of  law,  how  conclusive 
soever  in  civil  causes,  has  no  binding  force  on  the  jury  in  crim- 
inal cases.  But  this  doctrine  has  been  denied  on  very  high 
authority;  and  in  the  first  circuit  of  the  United  States,  as  well 
as  in  the  States  of  New  York,  Indiana,  New  Hampshire,  and 
Massachusetts,  it  seems  settled  that  juries  in  criminal  trials  have 
not  the  right  to  decide  any  question  of  law ;  and  that  if  they 
render  a  general  verdict,  their  duty  and  their  oath  require  them 
to  apply  to  the  facts,  as  they  may  find  them,  the  law  given  to 
them  by  the  court.  ^[ 

*  Greene  v.  Briggs,  1  Curtis,  311.  United  Sfates  v.  Morris,  1  Curtis,  60;  People 

f  M'Lanahan   v.    Universal    Ins.    Co.    1  T.  Price,  1  Barb.  S.  C.  R.  566 ;  Townsend  v. 

Peters,  182  ;  Games  v.  Stiles,  14  Peters,  322.  The  State,  2  Blackf.  152  ;  Pierce  v.  The  State, 

i  Ante,  p.  498.  13  N.  H.  R.  536;  Commonwealth  v.  Porter,  10 

f  Mitchell  v.  Harmony,  13  Howard,  131.  Met.  263;  and,  in  Ohio,  see  Montgomery  v. 

See,  in  this  case,  in  Mr.  J.  Daniel's  dissenting  The  State,    11   Ohio,  427.     In  England,  see 

opinion,  an  ingenious  and  elaborate  defence  of  Parmiter  v.  Conpland,  6  M.  &  W.  105;  Levi 

the  practice,  which,  he  says,  is  that  of  most  v.  Milne,  4  Bing.  195. 

of  the  Southern  States,  of  confining  the  charge          The  trial  by  jury  was  at  one  time  used  in 

to  matters  of  law.  New  York  as  a  mode  of  collecting  taxes.   The 

•[[  United  States  v.  Battiste,  2  Sumner,  240 ;  eighty-third  letter  of  the  Federalist  says  it  is 


580  THE   OBLIGATION  OF  CONTRACTS. 

Excessive  Bail  and  Cruel  Punishments.  Amendments,  art. 
viii. — It  has  been  decided  in  regard  to  this,  as  the  other  amend- 
ments, that  the  clause  only  operates  as  a  limitation  on  the 
General  Government,  and  does  not  apply  to  the  States  of  the 
Union.  * 

The  Obligation  of  Contracts. — We  have  thus  far  been  occu- 
pied with  considering  the  effect  of  those  clauses  in  the  Consti- 
tution of  the  United  States  which  act  as  restrictions  on  legis- 
lative power  and  as  guaranties  of  private  rights.  Of  these 
clauses,  however,  we  have  still  to  examine  that  which  in  its 
practical  operation  has  as  yet  proved  far  the  most  important, 
viz. :  The  provision  in  the  tenth  section  of  the  first  article, 
which  declares  that  no  State  shall  pass  any  law  impairing  the 
obligation  of  contracts.^ 

At  the  outset  of  the  discussion  we  may  remark,  that  some 
of  the  States  have  imposed  a  similar  restriction  upon  them- 
selves ;  J  while  in  regard  to  the  Federal  power,  there  is  no 
express  provision  protecting  the  sanctity  of  contracts.  Where 
it  was  asserted  that  an  act  of  Congress  granting  an  exclusive 

o  o  o 

privilege  in  the  shape  of  a  patent  was  void  on  the  ground  that 
the  patentee  had  had  an  exclusive  privilege  granted  him  by  the 
State,  and  that  on  the  expiration  of  the  State  grant  the  right 
to  his  invention  became  by  an  implied  contract  vested  in  the 

now, "  in  most  cases,"  out  of  use  for  this  pur-  yer,  and  learned  in  the  civil  law,  was  the 

pose.  author  of  the  phrase." 

*  Barker  v.  The  People,   3  Cowen,  686;  \  Louisiana. — No    ex  post  facto    law,    nor 

James  v.  Commonwealth,  12  Serg.  &  R.  220 ;  any  law  impairing  the  obligation  of  contracts, 

Barren  v.  Mayor  of  Baltimore,  7  Peters  R.  shall  be  passed,  nor  vested  rights  be  divested, 

243.  unless  for  purposes  of  public  utility  and  for 

\  Ante,  p.  545.  adequate     compensation    previously     made. 

The  importance  of  this  clause  certainly  Cons.  tit.  vi,  §  105. 

does  not  appear  to  have  been  realized  at  an  Tennessee. — No  retrospective   law  or  law 

early  period  in  our  history.     The  subject  of  impairing  the  obligation  of  contracts  shall  be 

the  Obligation  of  Contracts  is  very  summari-  made.     Cons.  art.  i,  §  20. 

ly  disposed  of,  in  connection  with  bills  of  at-  Missouri. — No   ex  post  facto  law,  nor   law 

tainder  and  ex  post  facto  laws,  by  the  Federal-  impairing  the  obligation  of  contracts  or  re- 

ist,  in  the  44th  letter.     Laws  in  violation  of  trospective  in  its   operation,  can  be  passed, 

private  contracts  are  referred  to  in  the  7th  Cons.  art.  xi,  §  17. 

letter,  and  are  spoken  of  somewhat  cursorily  '      The  Constitution  of  New  Jersey,  art.   iv, 

as  among  the  causes  which  might  lead  to  wars  sec.  7,  contains  a  peculiar  and  very  important 

among  the  States.     Mr.  Rawle's  work  on  the  provision,  to  which  I  shall  again  call  attention 

Constitution,  published  in   1825,  chap,  x,  p.  when  I  come  to  speak  of  vested  rights.     "The 

131,  contains  only  a  few  paragraphs  in  regard  Legislature  shall  not  pass  any  bill  of  attainder, 

to  the  matter.  ex  post  facto  law,  or  law  impairing  the  obliga- 

"  The  tradition  is,"  says  Mr.  Hunter,  argu-  tion  of  contracts,  or  depriving  a  party  of  any 

endo,  in  Sturges  v.  Crowninshield,  4  Wheat,  remedy  for  enforcing  a  contract  which  existed 

160,  "that  Mr.  Justice  Wilson,  who  was  a  when  the  contract  was  made."     Art.  4,  sec.  vii, 

member  of  the  Convention  and  a  Scottish  law-  8  3. 


THE  OBLIGATION  OF   CONTRACTS.  581 

people  of  the  State,  the  Circuit  Court  in  Pennsylvania  denied 
the  proposition,  saying,  "  If,  even,  the  premises  were  true,  still 
there  is  nothing  in  the  Constitution  of  the  United  States 
which  forbids  Congress  to  pass  laws  violating  the  obligation  of 
contracts,  although  such  a  power  is  denied  to  the  States  in- 
dividually." * 

The  consideration  of  this  important  clause  seems  naturally 
to  divide  itself  into  two  heads : 

First.  What  are  the  contracts  to  which  the  Constitution 
refers  ? 

Second.  What  acts  of  State  legislation  are  considered  to 
impair  their  obligation  f 

I  shall  examine  somewhat  in  detail  the  leading  cases  on  the 
subject,  and  then  endeavor  to  state  the  general  result  of  the 
decisions,  remarking,  however,  before  the  discussion  is  com- 
menced, that  it  has  been  decided  by  the  Supreme  Court,  under 
a  Virginia  act  of  1788,  that  the  present  Constitution  did  not 
commence  its  operation  until  the  first  Wednesday  of  March 
1789,  and  that  the  provision  as  to  the  obligation  of  contracts 
does  not  extend  to  a  State  law  enacted  before  that  time  and 
operating  upon  rights  of  property  vested  before  that  period,  f 

What  is  a    Contract  within  the  meaning  of  the  Constitu- 
tion f  (a) — The   Supreme    Court   has   said  that  the  contracts 

*  Evans  v.  Eaton,  Peters  C.  C.  U.  S.  E,  f  0  wings  v.  Speed,  5  Wheat.  420. 

337.   See  Gatlin  v.  Walton,  1  Wins.  (N.  C.)  333. 

(a)  What  is  a  Contract  within  this  Provision .? — Marriage.—  According  to  the  weight 
of  authority,  marriage  is  not,  as  a  contract,  protected  by  the  constitutional  provision. 
Adams  v.  Palmer,  51  Me.  480;  Carson  v.  Carson,  40  Miss.  849;  Cronise  v.  Cronise, 
54  Penn.  St.  255.  The  inchoate  rights  of  property  flowing  from  marriage  are  not 
protected,  it  seems;  thus  cur tesy  may  be  taken  away  as  to  land  not  vested  in  the 
wife.  Thurber  v.  Townsend,  22  N.  Y.  517 ;  and  see  In  re  Lawrence,  1  Redf.  (N.  Y.\ 
310.  In  some  States  it  is  held  that  dower  may  be  taken  away  before,  but  not  after 
the  death  of  the  husband.  Noel  v.  Erving,  9  Ind.  37;  Magee  v.  Young.  40  Miss.  164  . 
Barbour  v.  Barbour,  46  Me.  9;  Strong  v.  Clem,  12  Ind.  37;  Lucas  v.  Sawyer,  17 
Iowa,  517.  Doubtless  a  statute  abolishing  dower  would  apply  to  all  future  ac- 
quired lands.  See  Sutton  v.  Askew,  66  N.  C.  172 ;  Wesson  v.  Johnson,  66  N.  C. 
189.  It  seems  that  property  brought  by  the  wife  may  be  subjected  by  law  subse- 
quent to  the  marriage  to  the  husband's  debts.  Portis  v.  Parker,  22  Tex.  699.  There 
is  some  confusion  on  this  subject.  As  marriage  is  not  a  contract  within  this  pro- 
vision, it  is  very  clear  that  its  incidents  are  not  protected  ly  this  provision.  But  it 
by  no  means  follows  that  certain  incidents  of  marriage,  are  not  protected  by  other 


582  THE   OBLIGATION   OF   CONTRACTS. 

designed  to  be  protected  by  the  tenth  section  of  the  first  article 
are  "contracts  by  which  perfect  rights — certain  definite, 

provisions.  Those  property  rights  flowing  from  marriage  which  have  become  vested 
in  particular  lands,  are  as  truly  property  rights,  and  protected  by  the  constitutional 
provisions  respecting  due  process  of  law  and  the  like,  as  though  they  were  rights  by 
inheritance.  The  mere  capacity  of  the  husband  or  wife  to  acquire  property  in  the 
things  of  the  -other,  may  be  taken  away  before  it  has  applied  itself  to  some  partic- 
ular thing,  and  has  thus  turned  into  a  right  over  such  thing  ;  but  after  such  change, 
and  the  vesting  of  the  right,  the  Legislature  cannot  any  more  take  it  away  by  general 
laws  abolishing  curtesy  or  dower,  etc.,  than  by  a  particular  statute  applied  to  some 
designated  husband  and  wife.  See  2  Scribner  on  Dow.  ch.  i,  §§  13  to  20;  Kelly  v. 
Harrison,  2  Johns.  Gas.  29  ;  Lawrence  v.  Miller,  2  N.  Y.  245,  250 ;  Royston  v.  Royston, 
21  Geo.  161 ;  Moreau  v.  Detchmendy,  18  Mo.  522  ;  Simar  v.  Canaday,  53  N.  Y.  298. 

Arrangements  which  are  political  in  their  nature,  and  which  it  is  essential  that 
the  Government  should  have  power  to  change,  are  not  within  the  guaranty.  No 
mere  political  capacities  or  rights,  and  no  statutes,  Constitutions,  or  customs  by 
which  such  political  capacities  or  rights  are  acquired  or  conferred,  are  contracts. 
Among  these  are  municipal  corporations.  The  charters  of  municipal  corporations, 
whether  in  the  form  of  general  or  special  statutes,  are  not  contracts  within  the 
constitutional  guaranty.  Over  the  municipal  corporation,  and  over  its  public 
property,  the  power  of  the  Legislature  is  supreme.  People  v.  Pinkney,  32  N.  Y.  377  ; 
Erie  v.  Erie  Canal  Co.  59  Penn.  St.  174 ;  Philadelphia  v.  Fox,  64  Perm.  St.  169 ; 
Borough  of  Dunmore's  Appeal,  52  Penn.  St.  374 ;  Girard  v.  Philadelphia,  7  Wai.  1 ; 
State  Bank  v.  Knoop,  16  How.  U.  S.  369,  380 ;  Grogan  v.  San  Francisco,  18  Cal.  590  ; 
Blanding  v.  Burr,  13  Cal.  343  ;  People  v.  Hill,  7  Cal.  97  ;  Darlington  v.  Mayor,  31 
N.  Y.  164  ;  Savings  Friend  Soc.  v.  Philadelphia,  31  Penn.  St.  175, 185 ;  Philadelphia 
v.  Field,  58  Penn.  St.  320  ;  Gray  v.  Brooklyn,  10  Abb.  Pr.  N.  S.  186  ;  50  Barb.  365 ; 
Brewster  v.  Syracuse,  19  K  Y.  116  ;  Sill  v.  Corning,  15  N.  Y.  297 ;  People  v.  Draper, 
15  N.  Y.  532;  State  v.  R.  R.  Co.  12  Gill  &  Johns.  399;  Baltimore  v.  Board  of  Police, 
15  Md.  376;  Police  Commr's  v.  Louisville,  3  Bush,  597;  Diamond  v.  Cain,  21  La. 
Ann.  309  ;  State  v.  Leory,  Id.  538.  In  some  of  these  cases  it  has  been  said  that  a 
municipal  corporation  has  a  double  character,  the  onepuUie  and  the  other  private  ;  that 
whatever  pertained  to  the  former  was  under  the  complete  control  of  the  Legislature, 
but  that  such  a  corporation  might  have  private  property  or  some  other  private  rights, 
in  reference  to  which  its  charter  would  be  a  contract,  and  which  property  or  rights 
would  be  beyond  the  power  of  the  Legislature.  No  court  has,  however,  gone  beyond 
such  a  general  suggestion,  nor  attempted  to  define  in  what  cases  and  for  what 
purposes  a  municipal  corporation  could  hold  private  property  or  be  clothed  with 
such  private  rights  with  such  results;  the  discussion  of  the  courts  on  the  subject 
has  rather  been  speculative  and  general.  On  the  other  hand,  courts  have  denied  the 
existence  of  any  such  dual  nature  in  a  municipal  corporation,  and  have  held  that 
for  all  purposes  and  in  respect  to  all  property  they  are  under  the  control  of  the 
Legislature — in  other  words,  that  a  municipal  corporation  could  have  no  private 
property  or  character.  See  especially  for  a  full  and  positive  statement  of  these  views, 
Darlington  v.  Mayor  &c.  31  N.  Y.  164,  193,  per  Denio,  J. 

The  Legislature  may  apportion  municipal  burdens  in  case  of  consolidation,  etc. 
Layton  v.  New  Orleans,  12  La.  Ann.  515 ;  People  v.  Powers,  25  111.  187.  And  may 
divert  a  fund  which  has  been  raised  by  taxation  for  one  public  purpose,  to  another 


THE  OBLIGATION  OF  CONTRACTS.  583 

fixed,  private  rights  of  property — are  vested,"  as  distinguished 
from  rights  growing  out  of  measures  or  engagements  adopted 

similar  purpose — e.  g.,  may  direct  that  money  raised  by  taxation  in  a  county  may  be 
appropriated  to  pay  expenses  of  a  police  force  created  for  a  city  within  the  same 
county.  State  v.  St.  Louis  County  Court,  34  Mo.  546 ;  but  per  contra,  see  Mayor  v. 
Tows,  5  Sneed,  186.  The  former  of  these  conflicting  decisions  is  plainly  correct  on 
principle,  and  is  sustained  by  the  authorities,  for  the  fund  raised  by  &  municipality 
is  in  every  respect  a  public  fund,  and  has  none  of  the  elements  of  private  property, 
and  in  the  absence  of  special  restrictions  in  the  State  Constitutions  is  completely 
under  the  control  of  the  Legislature ;  and  it  should  be  remarked  that  the  Tennessee 
case  cited,  proceeds  upon  the  State  Constitution,  rather  than  upon  the  provision 
under  discussion  in  the  national  Constitution ;  and  a  grant  of  land  to  a  city  to  aid 
in  carrying  out  a  public  purpose,  e.  g.,  for  wharves,  or  docks,  and  the  like,  is  not  a 
contract,  but  the  land  is  under  the  control  of  the  Legislature.  People  v.  Vanderbilt, 
26  N.  Y.  287. 

But  after  a  municipal  corporation  has  been  created,  its  own  contracts  made  with 
individuals  in  respect  to  subjects  within  its  municipal  powers,  are  protected  by  the 
constitutional  guaranty,  so  far  as  the  rights  of  the  creditors  or  other  contracting 
parties  are  concerned,  as  as  for  example,  a  contract  in  reference  to  a  supply  of  gas. 
Western  &c.  Soc.  v.  Philadelphia,  31  Penn.  St.  175,  185 ;  or  a  grant  of  location  to  a 
railroad  upon  conditions,  such  location  having  been  accepted.  Brooklyn  &c.  E.  E. 
v.  Brooklyn  &c.  E.  E.  82  Barb.  358 ;  or  bonds  issued  for  the  funding  of  municipal 
indebtedness.  People  v.  Woods,  7  Cal.  579  ;  People  v.  Bond,  10  Cal.  563 ;  Board  of  • 
Education  v.  Fowler,  19  Cal.  11.  And  the  security  to  the  creditor  under  such  act 
cannot  be  diminished ;  e.  g.,  a  provision  that  no  other  bonds  shall  be  issued  for  any 
other  purpose  by  the  municipality  is  obligatory.  Smith  v.  Appleton,  19  Wise.  468. 
Also  a  clause  providing  for  a  special  tax  to  pay  the  bonds  is  binding.  Von  Hoffinan 
v.  Quincy,  4  Wai.  535;  English  v.  Supervisors,  19  Cal.  172  ;  and  see  Gilman  v.  She- 
boy  gan,  2  Black,  510.  And  bonds  issued  under  authority  of  law  by  municipal  cor- 
porations in  aid  of  railroads,  &c.,  are  within  the  guaranty;  and  lona  fide  creditors' 
rights  cannot  be  impaired  either  by  subsequent  State  legislation  or  by  subsequent 
State  judicial  decision  attacking  the  original  authority  to  issue  the  bonds. 

But  changes  may  be  made  in  the  law  under  which  such  municipal  contracts  or 
liabilities  were  created,  or  by  which  provision  is  made  for  their  payment,  provided 
such  changes  do  not  injuriously  affect  the  creditors,  of  which  it  seems  the  court  will 
judge.  Thornton  v.  Hooper,  14  Cal.  9;  Babcock  v.  Middleton,  20  Cal.  643.  Thus, 
for  example,  property  may  be  exempted  from  taxation  so  long  as  it  is  not  shown  that 
the  power  of  the  municipality  to  meet  its  liabilities  is  impaired.  Eichniond  v.  E.  & 
D.  E.  E.  21  Gratt.  604 ;  and  see  Gilman  v.  Sheboygan,  2  Black,  510. 

It  has  been  held  that  a  contract  between  the  State  and  a  municipal  corporation 
is  protected.  Grogan  v.  San  Francisco,  18  Cal.  590.  And  that  the  State  cannot 
divest  a  municipal  corporation  of  its  private  property.  Milwaukee  v.  Milwaukee,  12 
Wise.  93.  But  as  to  this  point,  see  remarks  supra,  in  this  note.  It  has  also  bee  n 
held  that  the  State  cannot  arbitrarily  create  a  debt  from  one  municipality  to  another. 
Jackson  County  v.  La  Crosse  Co.  13  Wise.  490 :  but  see,  on  this  point,  People  v.  Flagg, 
46  N.  Y.  401,  in  which  it  was  held  that  the  Legislature  can  compel  a  town  to 
create  a  debt  for  the  construction  of  highways,  and  to  issue  bonds  therefor,  although 
the  improvement  was  not  sanctioned  by  any  town  authorities,  nor  by  any  assent  o  f 


584  THE  OBLIGATION  OF  CONTRACTS. 

or  undertaken  by  the  body  politic  or  State  Government  for 
the  benefit  of  all,  and  which  from  the  necessity  of  the  case 

voters  or  taxpayers;  see,  on  the  other  hand,  People  v.  Batchellor,  53  N.  Y.  128.  It 
was  held  in  People  v.  Commissioners  &c.  53  Barb.  70,  that  after  a  highway  had  been 
laid  out  in  the  ordinary  manner,  the  owners  of  the  land  having  been  paid  for  the 
soil,  that  there  was  a  contract  between  the  public  and  such  owners  which  the  Legis- 
lature could  not  impair  by  a  statute  which  reduced  the  width  of  the  road,  and 
released  part  of  the  land  once  taken  to  the  original  owners  ! ! !  It  is  hardly  neces- 
sary to  say  that  this  decision  is  not  law ;  it,  in  fact,  says  that  the  constitutional 
guaranty  prohibits  one  party  to  a  contract  from  releasing  the  other  party  from  its 
terms,  because  such  act  would  impair  the  obligation.  There  is  of  course  no  "  public  " 
with  which  a  contract  can  be  made  except  the  State,  and  the  Legislature,  as  represent- 
ative of  the  State,  unless  prevented  by  some  prohibition  in  the  State  Constitution, 
can  release  parties  from  their  obligations  to  the  State.  Again,  all  that  was  said  on 
this  subject  was  utterly  unnecessary,  for  the  statute  had  been  pronounced  void 
on  another  ground,  and  this  opinion  of  the  court  was  entirely  extrajudicial. 

The  Legislature  may  release  a  corporation  from  a  contract  with  a  town  to  main- 
tain a  road.  People  v.  F.  &  B.  PI.  E.  Co.  27  Barb.  445  ;  and  see  Matter  of  Prot.  Epis. 
School,  46  N.  Y.  178. 

Permission  to  Sue  the  State. — A  statute  permitting  suit  against  the  State  may  be 
repealed,  although  suit  has  been  brought  on  the  faith  of  it.  Platenius  v.  State,  17 
Ark.  518;  Beers  v.  State,  20  How.  (U.  S.)  527.  And  the  Legislature  may  repeal  a 
law  directing  the  payment  of  a  judgment  out  of  the  public  funds.  Young  v.  The 
Territory,  1  Oregon,  213.  And  may  direct  that  no  more  warrants  shall  be  drawn  on 
the  treasurer.  Swann  v.  Buck,  40  Miss.  268 ;  and  see  Dodd  v.  Miller,  14  Ind.  433. 
But,  in  California,  it  was  held  that  a  statute  providing  that  demands  against  the 
State  must  be  approved  by  an  examining  board  before  a  warrant  could  be  issued, 
was  unconstitutional  in  its  application  to  existing  contracts.  McCarthy  v.  Brooks, 
16  Cal.  11 ;  and  see  Lamkin  v.  Sterling,  1  Idaho  T.  103.  It  has  been  held  in  Cali- 
fornia that  the  right  to  sue  a  county  stands  on  the  same  footing  as  the  right  to  sue 
the  State,  and  that  a  statute  funding  a  county  debt,  and  prohibiting  liquidation 
otherwise  than  as  the  statute  directed,  was  valid.  Hunsaker  v.  Borden,  5  Cal.  288  ; 
Sharp  v.  Contra  Costa  Co.  34  Cal.  284 ;  and  see  Dodd  v.  Miller,  14  Ind.  433.  These 
decisions  are  based  upon  the  local  provisions  in  regard  to  the  internal  and  county 
organization  of  the  States,  by  which  counties  are  not  municipal  corporations,  and 
cannot  sue  and  be  sued.  The  settled  doctrine  of  the  United  States  Supreme  Court 
is,  that  contracts,  such  as  bonds,  entered  into  by  counties,  as  well  as  by  towns  and 
cities,  are  within  the  protection  of  the  constitutional  guaranty,  and  will  be  enforced 
by  mandamus,  if  they  cannot  be  by  ordinary  action  prosecuted  to  judgment  and  exe- 
cution. Von  Hoffman  v.  Quincy,  4  "Wai.  535. 

Licenses. — Licenses  from  the  State  to  individuals  to  carry  on  trades  and  the  like, 
are  not  contracts  within  the  constitutional  provision.  Commonwealth  v.  Brennan, 
103  Mass.  70 ;  Met,  Bd.  of  Excise  v.  Barrie,  34  K  Y.  657 ;  State  v.  Holmes,  38  N.  H. 
225  ;  Calder  v.  Kurby,  5  Gray,  597. 

A  statute  or  provision  of  State  Constitution  imposing  certain  qualifications  upon 
an  attorney,  e.  g.,  an  oath  of  loyalty,  does  not  impair  the  obligation  of  contracts  be- 
tween him  and  his  clients,  although  he  may  thereby  be  rendered  unable  to  fulfil  those 
contracts  on  his  part.  State  v.  Garesche,  36  Mo.  256.  The  correctness  of  this  decision 


THE   OBLIGATION  OF  CONTRACTS.  585 

and  accordins;  to  universal  understanding  are   to  be   varied 

o  .  ~ 

or   discontinued   as   the   public   good    sliall   require.  *      And 

*  Butler  et  al.  v.  Pennsylvania,  10  Howard,  p.  416. 

is  more  than  doubtful,  as  the  Supreme  Court  of  the  United  States  has  pronounced 
the  laws  imposing  these  oaths  invalid.     See  note  to  "  Ex  post  facto  laws." 

A  grant  of  a  right  to  hold  a  lottery  may  be  repealed  if  no  rights  have  vested 
under  it.  Mississippi  Soc.  v.  Musgrove,  44  Miss.  820.  Otherwise,  where  granted  for  a 
valuable  consideration,  Boyd  v.  State,  46  Ala.  329 ;  or  where  the  grantees  have  assumed 
responsibilities  on  the  faith  of  the  grant,  and  rights  have  vested.  State  v.  Morrow,  26 
Mo.  135 ;  State  v.  Miller,  50  Mo.  129.  But  see  the  cases  first  cited  supra,  under  the  head 
of  "  Licenses."  By  the  reasoning  of  these  cases,  the  Legislature  has  power  to  revoke  a 
grant  to  hold  a  lottery  at  all  times,  and  whether  it  was  conferred  with  or  without  a 
valuable  consideration.  Laws  licensing  and  regulating  lotteries  are  mere  measures 
of  police,  and  as  such  are  under  the  absolute  control  of  the  Legislature. 

The  time  within  which  successful  drawers  in  a  State  land  lottery  can  assert  their 
rights  may  be  limited  by  subsequent  statute,  although  there  was  originally  no  limita- 
tion. McKenny  v.  Compton,  18  Geo.  170. 

Public  Offices. — Public  offices,  though  salaried,  are  not  held  by  contract  or  grant; 
and  unless  there  be  some  special  restraints  in  the  State  Constitution,  they  are  under 
the  complete  control  of  the  Legislature.  They  may  be  abolished,  or  the  term  there- 
of reduced,  the  salaries  may  be  reduced,  or  new  duties  imposed.  Conner  v.  City  of 
New  York,  5  N.  Y.  285,  295;  Robinson  v.  White,  26  Ark.  139;  State  v.  Douglas,  26- 
Wise.  428 ;  Wilcox  v.  Rodman,  46  Mo.  322  ;  Head  v.  University  of  Mo.  47  Mo.  220 ; 
Att'y  Gen.  v.  Squires,  14  Cal.  12 ;  Christy  v.  Board  <6c.  39  Cal.  3  ;  Turpin  v.  Tipton 
Co.  7  Ind.  172 ;  Standeford  v.  Wingate,  2  Duv.  440;  Alexander  v.  McKenzie,  2  Rich. 
(S.  C.)  N.  S.  81 ;  but  see  Gotten  v.  Ellis,  7  Jones  (Law),  545. 

An  act,  however,  prohibiting  payment  to  the  State  Auditor  for  services  already 
performed  was  held  void  in  Missouri,  the  Constitution  forbidding  retrospective  legis- 
lation. State  v.  Auditor,  33  Mo.  287. 

A  plain  distinction  exists  between  the  holding  of  an  office  and  the  contracting  for 
particular  services;  e.  <?.,  a  contract  for  printing  is  binding.  State  v.  Barker,  4  Kans. 
379. 

Grants  and  Charters  of  Corporations  not  Municipal. — As  stated  in  the  text,  it  is 
now  the  settled  doctrine  of  the  United  States  Supreme  Court,  and  finally  of  the  State 
courts,  that  the  charter  of  a  corporation  not  municipal  is  a  contract  within  the  con- 
stitutional guaranty;  and  a  fortiori  is  this  true  of  grants  from  the  State  to 
individuals. 

This  principle  extends  to  a  college  wholly  endowed  by  the  State.  Sheriff  v. 
Lowndes,  16  Md.  357  ;  per  contra,  see  Dart  v.  Houston,  22  Geo.  506 ;  Head  v.  Uni- 
versity of  Mo.  47  Mo.  220.  And  to  quasi  corporate  powers  granted  to  owners  of 
meadow  land,  upon  the  faith  of  which  money  has  been  expended.  •  Glover  v.  Powellr 
2  Stockt.  211.  And  to  grants  of  alternate  sections  to  persons  reclaiming  certain 
lands  after  the  labor  contemplated  has  been  performed.  Montgomery  v.  Kasson,  16 
Cal.  189.  Where  commissioners  borrow  money  to  make  a  canal,  and  pledge  the  canal 
for  payment,  under  a  statute  authorizing  them  to  do  so,  the  lien  thus  created  cannot 
be  divested  by  repeal.  Wabash  &c.  Canal  v.  Beers,  2  Black,  448. 

But  a  lien  created  by  general  law  is  not  a  contract  protected  by  the  Constitution. 
Martin  v.  Hewitt,  44  Ala.  418 ;  Coffin  v.  Rich,  45  Me.  507  ;  but  see  Gunii  v.  Barry,  15 


586  THE  OBLIGATION  OF  CONTRACTS. 

the  terms  of  the  clause  include  as  well  executory  as  executed 
contracts.* 

*  Fletcher  v.  Peck,  6  Cranch,  137. 

Wall.  610,  which  holds  that  a  State  cannot  take  away  the  lien  of  a  judgment  created 
by  general  statutes  existing  at  the  time  the  judgment  was  recovered.  Nor  are  rights 
acquired  by  prescription.  Stuber's  Road,  28  Penn.  St.  199. 

The  articles  of  association  of  a  bank  organized  under  a  general  banking  law, 
and  which  contained  provisions  not  authorized  by  such  law,  are  not  a  contract  with 
the  State.  Sherman  v.  Smith,  1  Black,  587. 

"Where  a  State  consents  to  the  purchase  of  lands  within  it  by  the  United  States, 
and  acts  are  done  by  the  United  States  in  respect  of  such  lands  in  pursuance  of  the 
-consent,  this  is  a  contract.  United  States  v.  Great  Falls  &c.  Co.  21  Md.  119. 

Bounty  laws  offering  exemptions  from  taxes  to  those  engaging  in  particular  oc- 
cupations or  pursuits  are  not  contracts.  Salt  Co.  v.  East  Saginaw,  13  Wai.  373 ;  a.  c. 
19  Mich.  259  ;  Christ  Church  v.  Philadelphia,  24  How.  (U.  S.)  300.  But  the  statute 
offering  the  bounty  cannot  be  repealed  so  as  to  take  away  the  bounty  from  those  who 
have  performed  the  services  for  which  it  was  offered.  People  v.  Auditor,  9  Mich.  327 ; 
and  see  Montgomery  v.  Kasson,  16  Cal.  189. 

Collateral  Stipulations  in  Charters.— It  being  settled  that  the  charter  itself  which 
creates  the  corporation  is  a  contract,  it  is  now  also  settled  (at  least  for  the  present) 
that  collateral  stipulations  contained  in  the  charter,  by  which  special  benefits  and 
exemptions  are  conferred  upon  the  corporators  or  the  corporation,  are  equally  con- 
tracts protected  by  the  constitutional  guaranty.  These  stipulations  have  generally 
related  to  the  State's  right  of  taxation,  or  to  the  State's  right  of  eminent  domain, 
and  in  them  the  State  has  purported  to  bind  itself  not  to  use  these  legislative  powers. 
The  State  courts  originally  denied  that  such  stipulations  were  binding  contracts,  on 
the  ground  that  no  Legislature  could  bargain  away  for  any  consideration  its  highest 
governmental  functions.  When  forced  to  abandon  this  position  by  the  repeated 
decisions  of  the  United  States  Supreme  Court,  they  yielded  with  a  protest.  In  ad- 
dition to  the  cases  referred  to  in  the  text,  the  following  which  deny  the  power  of 
States  to  enter  into  such  contracts  are  cited  as  part  of  the  history  of  an  important 
judicial  controversy.  Backus  v.  Lebanon,  11 N.  H.  19 ;  Easton  B'k  v.  Commonwealth, 
10  Penn.  St.  442}  Mott  v.  Penn.  R.  R.  30  Penn.  St.  9;  East  Saginaw  &c.  Co.  v.  E. 
Saginaw,  19  Mich.  259 ;  Raleigh  &c.  R.  R.  v.  Reid,  64  N.  C.  155  ;  Mech.  &  Traders' 
B'k  v.  De  Bolt,  1  Ohio,  N.  S.  591 ;  Toledo  B'k  v.  Bond,  Ib.  622 ;  Knoop  v.  Piqua 
B'k,  Ib.  603 ;  Milan  &c.  PI.  R.  v.  Husted,  3  Ohio,  K  S.  578 ;  Thorpe  v.  Rutland  &c. 
R.  R.  27  Vt.  140. 

The  United  States  Supreme  Court  has  by  a  long  series  of  decisions  established 
the  doctrine  that  in  the  charter  of  a  corporation  not  municipal,  the  State  may  by  a 
collateral  stipulation  exempt  the  corporation  from  taxation,  and  may  thus  bind  itself 
not  to  use  its  perhaps  highest  function.  In  addition  to  the  cases  quoted  in  the 
text,  that  court  has  decided  the  following :  Jefferson  Br.  B'k  v.  Skelly,  1  Black,  436 ; 
McGee  v.  Mathis,  4  Wai.  143  ;  Wilmington  R.  R.  v.  Reid,  13  Wai.  264  ;  Humphrey  v. 
Pegues,  16  Wall.  244.  And  has  extended  the  principle  to  charters  of  charitable  and 
literary  institutions,  in  Home  of  the  Friendless  v.  Rouse,  8  Wai.  430;  Washington 
University  v.  Rouse,  8  Wai.  439.  See  also  Iron  City  Bank  v.  Pittsburg,  37  Penn.  St. 
340  ;  O'Donnell  v.  Bailey,  24  Miss.  386  ;  St.  Paul  &c.  R.  R.  v.  Parcher,  14  Minn.  297; 
State  v.  Crittenden  Co.19  Ark.  360 ;  Att'y  Gen.  v.  Bank  of  Charlotte,  4  Jones  Eq.  287. 


THE  OBLIGATION   OF  CONTRACTS.         ,  587 

The  clause  in  the   Constitution  referring  to  all  contracts 
without  exception,  and  it  being  settled  that  this  includes  exec- 

In  the  two  cases  cited  above  from  8  Wallace,  the  United  States  Supreme  Court 
pushed  the  doctrine  much  farther  than  in  any  preceding  decision.  In  a  prior  gen- 
eral statute  the  Legislature  had  reserved  full  power  to  alter,  amend,  or  repeal  all 
charters  subsequently  granted.  The  charters  of  these  institutions,  however,  con- 
tained a  clause  that  such  prior  statute  should  not  apply  to  them,  and  that  their 
property  should  be  free  from  taxation.  This  provision  was  held  to  be  a  contract, 
and  a  subsequent  statute  imposing  a  tax  to  be  void.  The  court  were  not  unanimous. 
A  very  able  dissenting  opinion  was  delivered  by  Mr.  Justice  Miller,  and  concurred  in 
by  Mr.  C.  J.  Chase  and  Mr.  J.  Field,  which  took  the  bold  and  strong  ground  that 
the  court  ought  to  retrace  its  steps ;  that,  upon  principle,  it  was  impossible  for  one 
Legislature  to  bind  all  succeeding  Legislatures  not  to  use  the  highest  functions  of 
government,  the  power  of  taxation  and  of  eminent  domain ;  that  the  consequences 
of  the  doctrine  laid  down  by  the  court  might  be  very  grave.  Although  this  doc- 
trine is  as  firmly  settled  as  any  principle  of  constitutional  construction  can  be,  yet 
its  results  in  building  up  enormous  monopolies,  against  which  neither  the  Legisla- 
tures nor  the  people  of  the  States  can  have  any  redress,  may  drive  the  Supreme  Court 
to  abandon  it,  and  to  overrule  the  long  series  of  decisions  in  which  it  is  expressed. 
This  may  be  the  more  probable,  as  it  has  no  political  relations  and  is  not  now  the 
sign  of  any  political  beliefs  or  heresies. 

The  exemption  from  taxation,  to  be  a  binding  contract,  must  not  be  gratuitous; 
it  must  be  granted  upon  what  the  law  calls  a  consideration,  for  if  it  is  a  mere  priv- 
ilege it  may  be  recalled.  People  v.  Comrn'rs  of  Taxes,  47  N.  Y.  501 ;  Christ  Church 
v.  Philadelphia,  24  How.  (U.  S.)  300 ;  Brainard  v.  Colchester,  31  Conn.  407.  The  ex- 
emption may  be  repealed,  unless  there  is  an  express  contract  for  it  upon  a  considera- 
tion, so  as  to  be  deemed  a  part  of  the  value  of  the  grant.  St.  Joseph  v.  Hannibal  & 
.  St.  Jo.  R.  R.  39  Mo.  476. 

The  presumption  is  always  against  any  such  contract  of  exemption ;  for  it  to 
exist,  there  must  be  express  language,  or  the  intention  of  the  Legislature  must  be 
manifested  beyond  a  doubt.  Thus,  where  a  bank  charter  contained  a  provision  that 
one  per  cent,  of  its  earnings  should,  be  paid  to  the  State,  but  no  express  prohibition 
of  a  further  taxation,  it  was  held  that  a  license  tax  might  be  imposed.  St.  Louis  v. 
Man.  Sav.  B'k,  49  Mo.  574  ;  Easton  B'k  v.  Commonwealth,  10  Penu.  St.  442  ;  Gilman 
v.  Sheboygan,  2  Black,  510  ;  Bradley  v.  McAtee,  7  Bush,  667.  And  a  special  tax  on 
stock,  without  express  provision  against  further  taxation,  will  not  prevent  a  tax  on 
dividends.  State  v.  Petway,  2  Jones  Eq.  396.  And  a  license  by  the  State  does  not 
prevent  a  municipality  from  imposing  a  license.  New  Orleans  v.  Turpin,  13  La.  Ann. 
56.  And  income  derived  from  the  licensed  business  may  be  taxed.  Drexel  v.  Com- 
monwealth, 46  Penn.  St.  31. 

The  exemption  is  not  to  be  extended  beyond  its  express  terms.  Thus,  where  a 
railroad  itself  exempt  from  taxation,  leased  its  road  to  another  corporation  by  a  lease 
which  provided  that  the  lessee  should  pay  all  taxes,  the  lessee  was  held  not  within 
the  exemption.  State  v.  Delaware  &c.  R.  R.  1  Vroom,  473,  480  ;  and  see  Tomlinson  v. 
Branch,  15  Wall.  460.  And  it  would  seem  that  where  a  charitable  society,  itself  exempt, 
conveys  away  an  estate  for  a  gross  sum,  the  exemption  does  not  follow.  Brainard  v. 
Colchester,  31  Conn.  407.  And  where  a  city  charter  provided  that  certain  improve- 
ments having  been  made  at  the  expense  of  abuttors,  the  streets  should  henceforth  be 


588  THE   OBLIGATION   OF   CONTRACTS. 

utory  as  well  as  executed  contracts,  no  difficulty  seems  to  have 
presented  itself  in  relation  to  the  true  construction  of  the  clause 

kept  in  repair  by  the  city,  it  was  held  under  a  new  charter  containing  no  such  restric- 
tion, that  the  same  abuttors  might  be  assessed  for  substituting  Nicholson  pavement. 
Bradley  v.  McAtee,  7  Bush,  667.  And  the  exemption  of  a  corporation  from  taxation 
does  not  cover  land  owned  by  it,  but  not  used  or  occupied  for  its  necessary  purposes. 
State  v.  Newark,  1  Dutcher,  315. 

"Where  a  State  Legislature  has  enacted  that  the  bills  of  a  certain  bank  shall  be 
receivable  for  taxes,  any  such  bills  issued  before  the  repeal  of  the  law  cany  with  them 
the  privilege.  Furrnan  v.  Nichol,  8  "Wai.  44.  But  such  privilege,  though  contained 
in  a  charter,  may  be  repealed  as  to  future  issues.  Graniteville  &c.  Co.  v.  Roper,  15 
Rich.  L.  138 ;  State  v.  Stoll,  2  Rich.  (N.  S.)  588. 

Although  the  subject  has  been  considered  in  a  few  cases  only,  it  seems  settled 
that  a  State  may,  in  a  charter,  bind  itself  by  a  collateral  stipiilation  which  restricts 
its  power  of  eminent  domain.  Binghamton  Bridge  Case,  3  Wai.  51 ;  California  Tel. 
Co.  v.  Alta  Tel.  Co.  22  Cal.  398.  In  the  Binghamton  Bridge  Case,  a  provision  in  the' 
charter  of  a  toll  bridge  that  no  other  bridge  should  be  built  within  two  miles  above 
or  below  the  one  in  question  on  the  same  river,  was  sustained,  and  the  State  charter 
of  a  new  free  bridge  company  within  the  limits  was  held  void,  although  a  flourish- 
ing city  had  grown  up  at  the  place,  and  the  old  bridge  was  utterly  inadequate  for 
the  public  necessities. 

Can  a  State  under  the  form  of  a  contract  alienate  its  police  power  ?  This  question 
has  not  been  passed  upon  by  the  Supreme  Court  of  the  United  States.  The  State 
courts,  so  far  as  they  have  spoken,  answer  it  with  a  decided  negative.  Thorpe  v. 
Rutland  &c.  R.  R.  27  Vt.  149,  per  Redfield,  C.  J. ;  State  v.  Noyes,  47  Mo.  189;  In- 
dianapolis &c.  R.  R.  v.  Kercheval,  16  Ind.  84 ;  Ohio  &c.  R.  R.  v.  McClelland,  25  111. 
140. 

Where  a  State  Constitution  contained  the  following  provision :  "  No  man  or  set 
of  men  are  entitled  to  exclusive  separate  public  emoluments  or  privileges  but  in  con- 
sideration of  public  services,"  it  was  held  that  a  clause  in  the  charter  of  a  bank  com- 
muting its  tax  was  constitutional.  Daughdrill  v.  Ala.  L.  I.  &  T.  Co.  31  Ala.  91 ;  see 
also  Bank  v.  New  Albany,  11  Ind.  139. 

Miscellaneous. — The  provision  of  the  Constitution  has  no  application  to  contracts 
entered  into  after  a  State  statute  reserving  the  power  to  alter  or  abrogate  them. 
Thus,  contracts  made  after  the  passage  of  a  State  insolvent  law  may  be  discharged  by 
the  operation  of  such  law ;  and  charters  granted  after  the  reservation  of  power 
therefor,  may  be  changed  or  repealed.  In  re  Empire  B'k,  18  N.  Y.  199  ;  Roby  v.  Bos- 
cwell,  23  Geo.  51 ;  Guillotte  v.  New  Orleans,  12  La.  Ann.  432 ;  but  see  Goenen  v. 
Shroeder,  8  Minn.  387,  that  the  Legislature  cannot  reserve  the  right  to  impair  the 
obligation  of  contracts;  and  see  remarks  of  Bradley,  J.,  in  Miller  v.  State,  15  Wall. 
499. 

A  vote  of  a  municipality — of  the  taxpayers  or  electors — to  subscribe  to  the  stock 
of  a  corporation  is  not  a  contract ;  there  must  be  a  subscription.  Aspen  wall  v.  Comm'rs 
of  Daviess  Co.  22  How.  (U.  S.)  364. 

Such  circumstances  as  might  estop  from  doing  certain  acts  do  not  constitute  a 
contract  not  to  do  them.  Thus,  where  land  is  taken  under  authority  of  the  Legisla- 
ture for  a  public  park,  the  title  being  taken  absolutely  and  the  neighboring  property 
being  assessed  for  the  benefit,  the  Legislature  may  authorize  the  use  of  the  land  for 


THE   OBLIGATION   OF   CONTRACTS.  589 

in  regard  to  agreements  of  a  private  character.  All  private 
contracts,  in  the  ordinary  legal  application  of  that  phrase,  are 
understood  to  be  embraced  by  it.  If  an  agreement  is  such  that 

other  purposes,  although  this  will  lessen  the  value  of  surrounding  property.  Brook- 
lyn Park  Comm'rs  v.  Armstrong,  45  N.  Y.  234. 

Causes  nf  action  ex  ddicto  are  not  within  the  constitutional  guaranty.  Drehman 
v.  Stifle,  8  Wai.  595. 

What  is  included  in  the  Contract,  forming  apart  of  it? — The  rate  of  interest  does, 
and  cannot  be  lowered  by  legislation.  Myrick  v.  Battle,  5  Flor.  345.  And  if  it 
cannot  be  lowered,  for  a  like  reason  it  cannot  be  raised ;  but  days  of  grace,  it  is  said, 
do  not,  and  may  be  shortened  by  statute  by  the  creation  of  a  holiday.  Barlow  v. 
Gregory,  31  Conn.  261.  This  decision  is  plainly  opposed  to  the  ratio  decidendi  of  the 
numerous  cases  in  the  Supreme  Court  of  the  United  States  defining  the  meaning  of 
"  obligation."  "  Obligation  "  being  the  sum  of  legal  rights  and  duties  which  the 
law  creates  from  the  facts  of  a  contract,  the  right  to  three  additional  days  of  grace 
is  as  perfect,  and  as  much  a  legal  right  inherent  in  the  particular  contract,  as  the 
duty  to  pay  the  paper  at  all.  Because  the  parties  do  not  expressly  stipulate  for  three 
additional  days,  does  not  make  the  legal  title  to  them  any  the  less  one  of  the  essen- 
tial features  of  this  particular  contract.  To  take  away  this  right  by  statute  is  as 
plain  a  violation  of  the  constitutional  guaranty,  as  the  taking  away  the  right  to  in- 
terest after  the  debt  became  payable  would  be.  This  case  is  a  very  good  illustration 
of  the  confusion  which  the  State  courts  have  thrown  around  a  subject  which  is 
in  itself  simple  and  comprehensible — a  confusion  which  results  from  an  indisposi- 
tion on  the  part  of  so  many  judges  to  appreciate  the  meaning  of  the  word  "ob- 
ligation." 

The  security  upon  which  a  contract  was  entered  into  forms  a  part  of  the  contract. 
Thus,  where  improvement  bonds  were  issued  with  a  lien  on  an  entire  tract,  a  statute 
authorizing  the  sale  of  a  part  of  the  tract  free  from  the  lien  was  held  invalid.  Brook- 
lyn Park  Comm'rs  v.  Armstrong,  45  K  Y.  234. 

But  the  method  in  which  the  security  is  to  be  made  available  may  be  changed, 
provided  the  change  is  not  injurious  to  the  creditor.  Thus,  a  statute  was  upheld 
which  authorized  receivers  of  an  insolvent  corporation,  where  its  property  was  en- 
cumbered with  mortgages  the  validity  of  which  was  questioned,  and  where  the 
property  was  deteriorating,  to  sell  such  property  clear  of  encumbrances,  but  to  hold 
the  proceeds  subject  to  the  lien  and  to  abide  the  event.  Potts  v.  New  Jersey  Arms 
Co.  2  C.  E.  Green,  395. 

Where  a  charter  delegates  the  power  of  eminent  domain  to  a  corporation,  and 
provides  a  certain  method  for  its  exercise,  this  method,  it  has  been  held,  does  not 
form  part  of  the  contract  between  the  State  and  the  corporation.  Thus,  a  certain 
provision  in  a  charter  prescribing  the  method  of  acquiring  a  right  of  flowage  may, 
it  has  been  held,  be  repealed,  and  a  new  method  prescribed;  and  the  right  acquired 
under  the  original  method  may  be  divested  by  6uch  repeal,  and  the  party  left  to  ac- 
quire the  right  under  the  new  method.  Pick  v.  Rubicon  &c.  Co.  27  Wise.  433  ;  sed 
qu.  Where  the  law.  provided  that  purchasers  of  school  lands  should  have  the  right 
to  revive  their  contracts,  though  forfeitable  for  non-payment,  at  any  time  before  a 
public  sale ;  this  provision,  it  was  held,  made  a  part  of  the  contract  with  all  who 
purchased  school  land  under  it,  and  they  could  only  be  deprived  of  their  rights  by  a 
public  sale.  Damman  v.  Comm'rs,  4  Wise.  414. 


590  THE   OBLIGATION  OF   CONTRACTS. 

if  executory  it  can  be  enforced  in  a  court  of  justice,  or  that  if 
executed  a  remedy  can  be  sought  for  its  violation  or  infringe- 
ment, then  it  is  a  contract  to  be  protected  within  the  meaning 
of  the  constitutional  clause.  The  precise  extent  and  value  of 
the  protection,  we  shall  consider  when  we  consider  the  next 
head,  as  to  what  impairs  the  obligation  of  contracts. 

But  much  more  serious  embarrassments  present  themselves 
in  regard  to  rights  or  interests  created  by  or  under  legislation ; 
and  many  most  interesting  cases  have  been  decided,  as  to  the 
rules  to  be  applied  in  this  respect  to  legal  enactments.  I  shall 
endeavor  to  state,  as  briefly  as  I  can  with  precision,  the  results 
thus  far  arrived  at. 

Several  years  before  the  point  was  submitted  to  the  Federal 
tribunals,  it  was  said  by  one  of  the  most  eminent  jurists  of  the 
countiy,  that  "  rights  legally  vested  in  any  corporation  cannot 
be  controlled  or  destroyed  by  any  subsequent  statute,  unless  a 
power  for  that  purpose  be  reserved  to  the  Legislature  in  the 
act  of  incorporation."*  The  question  of  legislative  contracts 
was  first  distinctly  presented  to  the  Supreme  Court  of  the 
United  States  in  a  case  involving  the  power  of  a  State  to  repeal 
an  act  containing  a  grant  of  lands,  and  under  which  individual 
titles  of  bona  fide  purchasers  had  become  vested.f  The  Legis- 
lature of  Georgia,  on  the  7th  of  January,  1795,  passed  an  act 
in  relation  to  their  unappropriated  territory;  and  on  the  13th 
of  January  of  the  same  year,  letters  patent  for  a  portion  of  this 
land  were  issued,  under  and  by  virtue  of  the  act,  to  Gwin  and 
others.  From  Gwin  and  others  the  lands  in  question  passed  to 
one  Greenleaf,  by  deed  of  the  22d  of  August,  1795;  and  from 
Greenleaf,  by  sundry  mesne  conveyances,  to  the  defendant 
Peck;  and  he,  by  conveyance  of  the  14th  of  May,  1803,  con- 
veyed it  to  the  plaintiff  with  a  covenant,  that  the  State  of 
Georgia  was,  at  the  time  of  the  passage  of  the  above  act  of 
January,  1795,  legally  seized  in  fee  of  the  soil;  that  the  Legis- 
lature had  good  right  to  convey ;  and  farther,  that  the  title  to 
the  premises  so  conveyed  by  the  State  of  Georgia,  and  finally 
vested  in  Peck,  had  been  in  no  way  constitutionally  or  legally 

*  Per  Parsons,  C.  J.,  Wales  v.  Stetson,  f  Fletcher  T.  Peck,   6  Crunch,  87,  A.  D. 

decided  in  1806,  2  Mass.  146.  1810. 


LEGISLATIVE   CONTRACTS.  591 

impaired  by  virtue  of  any  subsequent  act  of  any  subsequent 
Legislature  of  the  State  of  Georgia.  The  declaration  in  the  suit 
then  averred  that  the  passage  of  the  act  of  the  7th  of  January, 
1795,  was  obtained  by  undue  influence  and  corruption,  and 
that  the  Legislature  of  the  State  of  Georgia  afterwards,  on  the 
13th  of  February,  1796,  repealed  the  act  of  1795,  by  an  act 
declaring  the  former  act,  and  all  grants  under  it,  null  and  void, 
and  affirmed  the  whole  territory  in  question  to  be  vested  in  the 
State.  The  plea  to  this  count  set  up  that  the  grantees  under 
the  patent  were  citizens  of  other  States  than  Georgia,  and  that 
they  had  no  notice  of  the  corrupt  practices  charged.  On  de- 
murrer to  this  plea,  the  precise  question  presented  was  whether 
the  act  of  the  State  of  Georgia  of  1796,  repealing  the  act  of 
1795,  could  have  any  effect  on  the  title  of  a  purchaser,  acquired 
under  the  prior  act,  for  a  valuable  consideration  and  without 
notice;  and  it  was  decided  by  the  Supreme  Court,  on  very- 
elaborate  consideration,  that  as  well  upon  general  principles 
common  to  all  free  institutions,  as  on  the  particular  provision 
which  we  are  considering,  no  such  effect  could  be  given  to  the 
act  of  1796.  They  held  that  the  law  of  1795  was  in  the  na- 
ture of  a  contract ;  that  absolute  rights  had  vested  under  that 
contract ;  that  the  repeal  of  the  act  impaired  the  obligation  of 
the  contract;  and  that,  consequently,  the  subsequent  statute 
was  unconstitutional  and  void.  * 

*  Fletcher  v.  Peck,  A.D.  1810,  6  Cranch,  State  does  not  possess  the  power  of  revoking 

136   to   138.      These  grants    are  familiarly  its  own  grants.     But  I  do  it  on  a  general 

known  as  the  Yazoo  grants.  principle,  on  the  reason  and  nature  of  things, 

The  doubts  and  difficulties  that  at  first  ex-  — a  principle  which  will  impose  laws  even 

isted  as  to  this  clause  of  the  Constitution  can  upon  the  D^ity." — Ibid.  p.  143. 
be  well  seen  in  the  opinion  of  Mr.  Justice          In  regard  to  the  question  how  far  fraud 

Johnson  in  this  case,  6  Cranch,  144,  145.  could  be  alleged  in  an  act  of  legislation,  the 

Several  interesting  questions  were  dis-  chief  justice  said — "  It  may  well  be  doubted 
cussed  iu  this  case.  As  to  the  general  extent  how  far  the  validity  of  a  law  depends  on  the 
of  legislative  power,  it  was  said  that  the  valid-  motives  of  its  framers,  and  how  far  the  par- 
ity of  the  rescinding  act  of  1796  might  well  ticular  inducements  operating  on  members  of 
be  doubted,  even  were  .Georgia  a  single  sov-  the  supreme  sovereign  power  of  a  State  to  the 
ereign  power.  "  To  the  Legislature  all  legis-  formation  of  a  contract  by  that  power,  are 
lative  power  is  granted ;  but  the  question  examiiable  in  a  court  of  justice."  See  also 
whether  the  act  of  1796,  transferring  the  Mr.  J.  Johnson's  Opinion,  p.  144.  The  sub- 
property  of  an  individual  to  the  public,  be  in  ject  was  discussed  at  length.  But  it  was  said 
the  nature  »of  the  legislative  power,  is  well  that  at  all  events  fraud  of  this  kind  could  not 
worthy  of  serious  reflection."  On  the  consti-  be  set  up  incidentally  and  collaterally;  that 
tutional  question,  Johnson,  J.,  dissented.  He  it  would  be  indecent  in  the  extreme,  upon  a 
held  that  the  obligation  clause  only  applied  to  private  contract  between  two  individuals,  to 
executory  contracts,  and  put  his  concurrence  enter  into  an  inquiry  respecting  the  corrup- 
with  the  court  on  the  general  doctrine.  He  tion  of  the  sovereign  power  of  a  State, 
said — "  I  do  not  hesitate  to  declare  that  a  I  may  observe,  on  this  question  of  fraud, 


592  LEGISLATIVE    CONTRACTS. 

A  case  was  shortly  afterwards  presented,  of  much  interest 
in  regard  to  the  general  question  of  the  sacredness  of  legislative 
grants,  in  connection  with  the  early  history  of  Virginia.*  It 
appears,  and  indeed  is  judicially  declared  in  this  case,  that  at 
an  early  period  the  religious  establishment  of  England,  together 
with  the  general  rights  and  authorities  growing  out  of  the  com- 
mon law  of  the  mother  country,  was  adopted  in  the  colony  of 
Virginia;  and  by  various  statutes  passed  from  1776  to  1788 
the  Legislature  of  the  State  confirmed  and  established  the 
rights  of  the  church  to  all  its  lands  and  other  property.  In 
1798  a  different  public  opinion  prevailed  in  the  State;  and  by 
two  statutes  passed  in  that  year  and  in  1801,  the  Legislature 
repealed  the  previous  legislation  on  the  subject,  as  inconsistent 
with  the  principles  of  religious  freedom  declared  by  the  Consti- 
tution, and  asserted  the  right  of  the  Legislature  to  all  the  prop- 
erty of  the  Episcopal  church  in  the  State.  The  Supreme  Court, 
however,  held  the  grants  contained  in  the  original  acts  to  be 
irrevocable,  and  that  the  acts  of  1798  and  1801  were  wholly 
inoperative.  It  may  be  remarked,  however,  that  the  decision  in 
this  case,  although  obviously  correct,  is  placed  by  the  court  as 
much  on  the  principles  of  natural  justice,  as  on  express  provis- 
ion ;  nor  is  the  statement  of  the  constitutional  point  very  clear 
or  well  defined.  Indeed,  it  is  matter  of  interesting  observation 
to  notice  how  gradually  the  legal  mind  of  the  country  has  ap- 
proached the  solution  of  our  great  constitutional  questions,  and 
with  what  sagacious  caution  the  judiciary  have  generally  de- 
clared their  authority. 

The  precise  question  that  we  are  now  considering, — i.e., 
how  far  a  legislative  act  is  to  be  treated  as  a  contract,  was  soon 
after  presented  in  a  broader  shape.  In  the  year  1754,  a  clergy- 
man of  the  name  of  Wheelock  established  a  charity  school  in 
Connecticut  for  the  instruction  of  Indians  in  Christianity.  De- 

that  in  Connecticut  the  following  language  taining  a  legislative  act  will  not,  when  shown 

has  been  used — "Fraud  is  not  to  be  presumed;  in  a  collateral  proceeding,  invalidate  the  act, 

and  when  this  court  is  called  upon,  in  this  see  Jersey  City,  &c.  R.  It.  v.  Jenny  City,  etc. 

collateral  manner,  to  declare  void  an  act  of  R.  R.  20  N.  J.  Eq.  61.     And  the  same  is  true 

the  General  Assembly,  upon  the  ground  that  of  bad  motives  on  the  part  of  the  legislators. 

it  was  fraudulently  obtained,  this  fact  should  People  v.   Shepard,  36  N.  Y.   285 ;  State  v. 

be  clearly  proved."    The  Derby  Turnpike  Co.  Cram,  16  Wise.  343. — EDITOR.] 

v.  Parks,  10  Conn.  540.  *  Terrett  v.  Taylor,  9  Cranch,  43. 
[That  misrepresentation  or  fraud  in  ob- 


LEGISLATIVE    CONTRACTS.  593 

sirous  to  extend  the  institution,  he  solicited  pecuniary  aid  in 
England.  Funds  were  collected  by  private  donations,  the 
founding  of  a  college  determined  on,  and  New  Hampshire 
selected  for  its  site.  Finally  a  charter  from  the  crown  was 
obtained,  in  the  year  1769,  for  a  body  corporate  to  be  called, 
"  The  Trustees  of  Dartmouth  College ; "  the  whole  corporate 
powers,  including  that  of  holding  real  and  personal  estate, 
being  vested  in  twelve  trustees,  clothed  with  authority  to  fill 
vacancies  occurring  in  their  body.  The  institution  went  into 
existence  under  this  charter  as  Dartmouth  College,  and  so  con- 
tinued without  interruption  or  interference  till  the  year  1816, 
when  the  Legislature  of  New  Hampshire  passed  several  acts 
"  to  amend  the  charter,  and  enlarge  and  improve  the  corpora- 
tion," by  which  the  trustees  were  increased  from  twelve  to 
twenty-one,  the  additional  number  being  appointed  by  the  ex- 
ecutive of  the  State,  and  a  board  of  twenty-five  overseers  cre- 
ated, of  whom  twenty-one  were  also  appointed  by  the  executive. 

Upon  these,  acts  being  brought  up  before  the  Supreme 
Court  of  the  United  States,  as  conflicting  with  the  constitu- 
tional guaranty  of  contracts,  it  was  strenuously  contended  that 
the  act  of  incorporation  was  a  mere  grant  of  political  power, 
creating  a  civil  institution  to  be  employed  in  the  administration 
of  a  part  of  the  government  of  New  Hampshire,  regarding 
instruction  as  a  subject  of  public  concern,  and  that  as  such  it 
was  entirely  under  the  control  of  the  State.  It  was  furthermore 
insisted  that  the  trustees,  who  complained  of  the  violation  of 
the  Constitution,  had  no  vested  beneficial  or  pecuniary  interest 
entitled  to  protection ;  and,  on  both  these  grounds,  that  the 
charter  was  not  a  contract  within  the  meaning  of  the  Constitu- 
tion. But  the  Supreme  Court  of  the  United  States  held  that 
Dartmouth  College  was  an  eleemosynary  and  not  a  civil  insti- 
tution participating  in  the  administration  of  government, — 
that  it  was  a  seminary  of  education  incorporated  for  the  per- 
petual application  of  its  property  to  the  objects  of  its  creation. 
They  further  held  that  the  trustees  represented  the  donors  of 
the  original  funds,  were  the  assignees  of  their  rights,  stood  in. 
their  place,  and  were  equally  entitled  to  protection ;  that  the 
charter  was  a  contract  made  on  a  valuable  consideration'  for  the 

38 


594  LEGISLATIVE    CONTRACTS. 

security  and  disposition  of  property,  and  as  such  came  within 
not  only  the  letter  but  the  spirit  of  the  Constitution.  The  judg- 
ment of  the  Supreme  Court  of  New  Hampshire  which  had  affirmed 
the  validity  of  the  legislation  of  the  State  was  reversed,  and  the 
statutes  in  question  declared  unconstitutional  and  void.* 

The  case  of  Fletcher  v.  Peck  was  a  case  of  grants  of  laud. 
The  Dartmouth  College  case  was  that  of  the  franchises  of  an 

O 

eleemosynary  corporation.  These  two  decisions,  therefore,  taken 
together,  determined  in  the  most  favorable  aspect  for  rights 
vested  by  legislative  action,  that  all  private  rights  of  property 
created  by  virtue  of  a  statute  were  protected  by  the  Constitu- 
tion ;  and  this  doctrine  has  been,  ever  since  the  decision  of  the 
last-mentioned  case,  considered  the  settled  law  of  the  Union. f 

It  has,  indeed,  been  insisted  that  the  Legislature  has  no 
power  to  grant,  by  special  act,  exclusive  rights  and  privileges ; 
but  it  is  now  well  settled  that  the  Legislature  may  make  ex- 
clusive grants  of  property  or  privileges,  as  of  bridge,  ferry,  and 
railroad  franchises.  Such  grants  are  not  regarded  as  monopolies, 
in  the  odious  sense  of  the  phrase,  but  as  contracts  within  the 
meaning  of  the  Constitution.  It  has  been  urged  in  argument,  that 
if  this  right  be  conceded,  a  legislature  may  create  gross  and  out- 
rageous monopolies.  But  the  Supreme  Court  of  New  Hampshire 
has  said,  while  affirming  the  general  doctrine  of  the  power,  that 
it  will  be  in  time  to  consider  whether  grants  of  this  character  are 
within  the  constitutional  exercise  of  the  legislative  power,  when 
a  case  is  presented  in  which  it  is  apparent  that  a  fraud  has  been 
practiced  in  obtaining  the  grant,  or  the  circumstances  under  which 
it  was  made  show  that  it  was  merely  colorable,  and  intended  to 
effect  other  purposes  than  those  which  appear  on  the  face  of  it.J 

*  Dartmouth  Coll.  v.  Woodward,  4  Wheat,  doubt  its  original  property.     Therefore,  al- 

519,  decided  in  1819.     See  Mr.  Chancellor  though  it  maybe  true  that  to  create  a  private 

Kent's  remarks  on  this  case,  1  Com.  418,  lee.  corporation    without   a   reserved    legislative 

xix.     Its  decision  undoubtedly  forms  one  of  power  over  its  charter  is  an   act  of  improvi- 

the  creat  epochs  in  our  legal  and  constitu-  dent  legislation,  yet  the  judiciary  hns  no  re- 

tional  annals.  medial  power  to  apply."     Washington  Bridge 

f  "Ever  since  the  case  of  Dartmouth  Coll.  Co.  v.  The  State,  18  Conn.  65. 

v.   Woodward  was  decided  by  the  national  That  a  legislature  can  no  more  revoke  its 

court,  recognizing  the  charters  of  private  cor-  grants  than  a  donor  his  gift  when  delivered, 

porationsas  contracts  protected  from  invasion  is  now  to  be  considered  perfectly  well  settled, 

by  the  Constitution  of  the  United  States,  no  Enfield  Toll  Bridge   Co.  v.  The  Conn.  Eiver 

other  court  in  this  country  has  disregarded  Co.  7  Conn.  44;  The  Derby  Turnpike  Co.  v. 

the  doctrine;  and  we  consider  it  now  as  ob-  Park,  10  Conn.  541 ;  The  People  v.  Platt,  17 

ligatory  and  settled  beyond  our  reach  either  Johns.  II.  215. 

to  deny  or  disregard,  even  if  any  of  us  should  J  Piscataqua^  Bridge  v.   K   H.  Bridge,  7 


LEGISLATIVE    CONTRACTS.  595 

The  general  principle  is  thus  settled  in  regard  to  corporate 
grants,  or  to  contracts  resulting  from  acts  of  incorporation ;  but 
a  very  important  modification  or  qualification  was  attached  to 
the  rule  by  a  subsequent  decision  of  the  Supreme  Court  of  the 
United  States.  They  decided  that  all  acts  of  incorporation, 
like  other  public  grants,  are  to  be  construed  strictly,  and  that 
no  contract  or  agreement  is  to  be  inferred  in  them,  as  against 
the  Government  and  in  behalf  of  the  corporation,  but  what 
they  expressly  contain.  So,  where  the  Legislature  of  Massa- 
chusetts, in  17  8  5,  granted  a  charter  for  seventy  years  to  a 
bridge  company,  with  the  right  of  taking  tolls,  across  the 
Charles  river,  and  in  1828  the  State  incorporated  another  com- 
pany with  like  authority  to  build  a  toll  bridge,  in  such  close 
proximity  to  the  first  bridge  as  actually  to  take  away  its  tolls 
and  destroy  the  value  of  its  franchises,  it  was  held  that  this 
last  act  was  valid,  on  the  ground  that  the  original  bridge  char- 
ter contained  no  express  grant  of  exclusive  privilege,  and  that 
the  whole  matter  was  within  the  legitimate  control  of  the  Legis- 
lature. This  important  doctrine  has  been  repeatedly  affirmed, 
and,  I  think,  has  commended  itself  to  the  general  good  sense 
no  less  than  the  sound  legal  judgment  of  the  country.* 

Having  thus  exhibited  the  leading  rules  which  declare  the 
definition  of  contracts  within  the  meaning  of  the  Constitution, 
it  will  be  well  to  examine  some  of  the  special  cases. 

A  compact  was  entered  into  between  the  States  of  Virginia 
and  Kentucky,  contained  in  an  act  of  the  Legislature  of  the 
former  State,  passed  the  18th  of  December,  1789,  and  ratified 
by  the  convention  which  framed  the  Constitution  of  Kentucky, 
and  incorporated  into  that  Constitution,  to  the  effect  that  all 
private  rights  and  interests  of  lands  within  the  district  of 
Kentucky  derived  from  the  laws  of  Virginia  prior  to  their  sep- 
aration, should  remain  valid  and  secure  under  the  laws  of  the 
proposed  State,  and  should  be  determined  by  the  laws  then 
existing  in  the  State  of  Virginia.  Two  laws  were  passed  by 

N.  H.  35.     This  was  a  case  of  a  bill  filed  by  Bridge   v.    The   Proprietors  of   the  Warren 

a  bridge  company  to  restrain  parties  from  Bridge,  11  Peters,  420.     Story,  J.,  dissented, 

proceeding  to  create  another  bridge,  and  thus  See,  to  s.  P.,  The  Richmond    R.  R.  Co.  v. 

infringing    on   the   exclusive   rights   of    the  Louisa  R.  R.  13  Howard,  81 ;  Ohio  L.  I.  Co. 

plaintiffs.  v.  Debolt,  16  Howard,  430. 
*  The  Proprietors  of  the  Charles  River 


596  LEGISLATIVE    CONTRACTS. 

the  State  of  Kentucky  in  February,  1797,  and  January,  1812r 
concerning  occupants  and  claimants  of  land,  materially  affecting 
private  rights  and  interests  to  land,  by  exempting  occupants 
without  title  from  liability  for  waste,  as  well  as  for  rents  and 
profits,  and  compelling  the  true  owner  to  pay  for  improvements 
put  on  the  land  by  the  occupant,  even  during  the  pendency  of 
the  suit.  No  acts  of  a  similar  character  were  in  existence  in 
Virginia  at  the  time  when  the  compact  was  made.  The  Supreme 
Court  held  that  the  compact  between  the  two  States  came 
within  the  constitutional  clause;  that  the  laws  in  question 
rendered  the  rights  and  interests  of  owners  less  valid  and 
secure,  and  thus  impaired  the  contract ;  and  that  Kentucky 
being  a  party  to  the  original  compact,  which  guaranteed  those 
rights,  could  not  constitutionally  pass  the  statutes  in  question.* 

Where  the  Legislature  of  Arkansas  chartered  a  bank,  the 
whole  of  the  capital  of  which  belonged  to  the  State,  and  de- 
clared that  the  bills  and  notes  of  the  institution  should  be 
received  in  payment  of  debts  due  to  the  State,  it  was  held  that 
the  undertaking  of  the  State  to  receive  the  notes  of  the  bank 
constituted  a  contract  between  the  State  and  the  holders  of 
these  notes,  which  the  State  was  not  at  liberty  to  break ;  but 
that  a  repeal  of  the  act  put  an  end  to  the  contract  as  to  all 
notes  subsequently  issued,  f 

The  provision  of  an  act  incorporating  a  railroad,  that  no 
other  railroad  shall  be  authorized  to  be  made  between  the  same 
points  for  thirty  years,  constitutes  a  contract  to  that  effect 
which  no  subsequent  act  can  be  permitted  to  impair.  J 

In  regard  to  the  nature  of  contracts  resulting  from  acts  of 
legislation,  it  appears  to  be  settled  by  the  Federal  tribunals 
that  it  is  competent  for  a  State  to  pass  laws  exempting  property 
from  taxation,  which  shall  operate  as  contracts,  and  as  such  be 
irrepealable.  The  Delaware  Indians,  having  large  claims  to 
the  southern  part  of  New  Jersey  while  yet  a  colony,  surrendered 

•Green  v.  Biddle,   8  Wheaton,  1.     Mr.  f  Woodruff  Y.  Trappnnll,  10  Howard,  191 ; 

Justice  Johnson  dissented.  see  also  Paup  v.  Drew,  10  How.  218,  on  the 

The  doctrine  of  Green  v.  Biddle  was  ap-  subject  of  this  charter. 

proved  and  applied  in  Tennessee,  in  1830,  to  \  Boston  and  Lowell  R.  R.  Corporation  v. 

a  case  coming  up  under  their  State  Constitu-  Salem  and  Lowell  R.  R.  Co.  2  Gray,  1. 

tion,  which  contains  a  provision  similar  to  ||  This  subject  of  exemption  from  taxation 

that  of  the  Constitution  of  the  United  States,  we  have  already  partially  considered,  ante, 

Nelson  v.  Allen  et  al.  1  Yerger,  360.  p.  511. 


EXEMPTION  FROM  TAXATION.  597 

them  upon  an  agreement  made  between  them  and  the  commis- 
sioners of  the  colony,  by  which  in  consideration  of  the  cession 
the  colony  agreed  to  purchase  a  tract  of  land  for  them  to  reside 
on,  and  the  Assembly,  in  an  act  passed  on  the  12th  of  August, 
1758,  to  carry  this  agreement  into  effect,  declared  that  the 
lands  to.be  purchased  for  the  Indians  should  be  thereafter 
exempted  from  taxation.  Under  the  act  the  agreement  was 
executed  and  lands  purchased  for  them,  which  they  held  till 
about  1801,  when  they  obtained  an  act  from  the  Legislature  oi 
the  State  of  New  Jersey  authorizing  them  to  sell.  This  act 
contained  no  reference  to  the  exemption  from  taxation.  In 
1803,  the  Indians  sold  the  lands  to  the  plaintiff  in  this  suit. 
In  1804,  the  State  of  New  Jersey  repealed  the  section  of  the 
act  of  1758  exempting  the  lands  from  taxation;  and  the  ques- 
tion presented  was  on  the  constitutionality  of  this  repeal.  The 
court  held,  that  the  proceedings  between  the  colony  of  New 
Jersey  and  the  Indians,  formed  a  contract ;  a  privilege,  though 
for  the  benefit  of  the  Indians,  being  annexed  to  the  land,  not  to 
their  persons,  that  the  purchaser  had  succeeded  with  the  assent 
of  the  State  to  all  the  rights  of  the  Indians ;  and  they  declared 
the  act  unconstitutional  and  void.* 

In  1845,  the  State  of  Ohio  passed  a  general  banking  law 
by  which  it  was  declared  that  every  banking  company  organ- 
ized under  the  act  should  serni-annually  set  off  six  per  cent,  on 
its  profits ;  and  that  this  should  be  in  lieu  of  all  taxes  to  which 
the  company  or  the  stockholders  should  be  subject.  In  1851, 
'an  act  was  passed  to  tax  banks,  which  provided  that  bank 
stock  should  be  taxed  at  the  same  rate  as  other  personal  prop- 
erty. It  was  contended  for  the  State,  that  the  act  of  1845  was 
a  mere  law  prescribing  a  rule  of  taxation ;  that  the  relinquish, 
ment  of  the  taxing  power  could  not  be  made  the  matter  of  a 
binding  contract;  and  that  the  permanent  exemption  from 
taxation  was  a  relinquishment  of  a  portion  of  the  sovereign 
power  of  the  State,  which  no  legislature  could  make.  But  the 
Supreme  Court  of  the  United  States  held  that  the  act  of  1845 
created  a  contract  fixing  the  limit  of  taxation  on  the  banks  in 

*  State  of  New  Jersey  v.  Wilson,  7  Cranch,  165 — 1812. 


598  EXEMPTION  FROM   TAXATION. 

question ;  that  the  position  that  a  State  in  exempting  certain 
property  from  taxation  relinquished  a  part  of  its  sovereign 
power,  was  an  unfounded  assertion ;  that  it  was  as  competent 
for  a  State  to  make  a  contract  in  regard  to  exemptions  from 
taxation  as  in  regard  to  any  other  matter;  and  the  act  of  1851 
was  held  unconstitutional  and  void.  * 

The  same  question,  or  one  closely  analogous,  was  presented 
shortly  afterwards  in  another  shape,  and  it  was  decided  that, 
where  the  State  of  Ohio  in  1845  chartered  a  bank,  in  the  charter 
of  which  it  was  stipulated  that  the  tax  which  the  bank  should 
pay  should  be  computed  on  a  certain  principle,  and  should  not 
exceed  a  certain  sum;  and  in  1852  the  Legislature  passed  an 
act  assessing  taxes  on  the  bank  to  a  greater  amount  and  on  a 
different  principle, — the  law  was  in  conflict  with  the  clause  of 
the  Constitution  of  the  United  States  relating  to  the  obligation 
of  contracts,  and  void.  And  the  fact  that  the  people  of  the 
State  had  in  1851  adopted  a  new  Constitution,  in  which  it  was 
declared  that  taxes  on  banks  should  be  imposed  in  the  mode 
which  the  act  of  1852  purported  to  carry  out,  was  held  not  to 
release  the  State  from  the  obligations  imposed  on  it  by  the 
Constitution  of  the  United  States,  f 

Again,  where  the  Legislature  of  the  State  of  Maryland  ac- 
cepted from  a  banking  corporation  a  bonus  as  a  consideration 
for  the  franchise  granted,  and  pledged  the  faith  of  the  State 
not  to  impose  any  further  tax  or  burden  upon  them  during 
the  continuance  of  their  charter,  it  was  held,  that  this  was  a 
pledge  against  additional  taxation;  that  the  exemption  oper-N 
ated  as  well  in  favor  of  the  stockholders  personally  as  of  the 
capital  stocks  of  the  banks ;  and  that  a  tax  upon  the  stock- 
holders by  reason  of  their  stock  impaired  the  obligation  of  this 
contract ;  and  the  tax  was  therefore  declared  illegal.  J 

*  State  Bank  of  Ohio  v.  Knoop,  16  How.  which  State  decisions  control  the  Supreme 
369.    Catron,  J.,  Daniel,  J.,  and  Campbell,  J.,  Court  of  the  United  States, 
dissented.     See  also  the  case  of  the  Ohio  Life  f  Dodge  v.  Woolsey,  18  How.  330;  Wool- 
Insurance  and  Trust  Co.  v.  Dubolt,  16  How-  sey  v.  Dodge,  6  M'Lean,  142. 
ard,  416,  on  the  same  banking  laws.     The  \  Gordon  v.  Appeal  Tax  Court,  3  How.  133. 
opinions  in  these  cases,  as  well  of  the  court  The  same  result  in  regard  to  contracts  for 
as  of  the  dissenting  members,  are  of  great  in-  exemption  from  taxation,  has  been  declared 
terest  in  regard  to  the  subject  of  State  con-  in  Connecticut,  but  doubted  in  New  Hamp- 
tracts,  the  general  nature  of  legislative  power,  shire.     Osborn  v.   Humphrey,  7  Conn.  335  ; 
exemptions  from  taxation,  and  the  extent  to  Brewsterv.  Hough,  ION.  H.  138;  ante,  p.  511. 


EXEMPTION   FROM   TAXATION. 


599 


.  But,  in  analogy  to  the  rules  requiring  a  strict  interpretation 
to  be  applied  to  all  corporate  grants,  it  is  held,  that  although  a 
contract  may  be  made  exempting  a  party  from  taxation  it  must 
be  very  clear  and  express.  The  taxing  power  of  a  State  is 
never  presumed  to  be  relinquished  unless  the  intention  to  re- 
linquish is  declared  in  clear  and  unequivocal  terms.*  So,  when 
a  State  enacted  that  the  real  property  belonging  to  a  hospital 
"  should  be,  and  remain  free  from  taxes,"  it  was  held,  that  there 
being  nothing  in  the  exempting  statute  in  the  nature  of  a  con- 
tract, it  was  liable  to  repeal.  "  No  duty,"  said  the  Supreme 
Court  of  Pennsylvania,  "  is  imposed  on  the  institution  as  the 
consideration  of  the  grant ;  it  is  required  to  do  nothing ;  it  is 
'  left  to  pursue  its  own  course  as  freely  as  before."  f 

In  the  cases  just  examined,  we  have  seen  that  the  legislative 
acts  are  sometimes  held  to  create  a  contract,  and  treated  accord- 
ingly. But  we  have  already  J  stated  that  in  the  term  contracts 
are  not  included  rights,  or  rather  interests,  growing  out  of 
measures  of  public  policy.  So,  no  contract  is  created  by  a  stat- 


in New  Jersey  also  it  has  been  decided 
that  when  an  incorporated  company  is  by  its 
charter  exempt  from  taxation,  the  stock  in  the 
hands  of  the  stockholders  cannot  be  taxed ;  it 
represents  and  is  the  title  to  the  property  of 
the  company,  and  therefore  is  included  in  the 
exemption  of  the  charter.  The  State  v.  Bra- 
nin,  3  Zabriskie,  p.  485.  In  this  case  the  ab- 
solute power  of  the  Legislature  over  the  sub- 
ject of  taxation,  is  strongly  declared. 

See  also  on  the  subject  of  exemption  from 
taxation  of  stockholders  of  institutions  them- 
selves exempt,  Johnsen  v.  The  Commonwealth, 
7  Dana,  342;  Tax  Cases,  12  Gill  &  J.  117; 
Gordon's  Ex'ors  v.  The  Mayor  of  Bait.  5  Gill, 
236 ;  Smith  v.  Burley,  9  New  Hampshire,  423. 
See  the  subject  of  statutory  exemptions  from 
taxation  elaborately  considered  also  in  Lan- 
don  v.  Litchfield,  11  Conn.  251. 

*  Philadelphia  &  Wilmington  R.  R.  Co.  v. 
Maryland,  10  Howard,  393  ;  Providence  Bank 
v.  Billings  &  Pittman,  4  Peters,  614. 

f  Hospital  v.  Philadelphia  Co.  24  Penn. 
229. 

An  interesting  question  of  a  somewhat  anal- 
ogous nature,  has  been  raised  in  Massachu- 
setts in  regard  to  the  application  of  the  con- 
stitutional provision  to  the  grants  of  lands 
made  in  that  State  to  to^ns  for  the  support 
of  the  ministry.  In  1797  the  Legislature 
passed  a  resolve  authorizing  the  sale  of  certain 
ministry  lands  in  the  town  of  Lanesborough, 
and  the  distribution  of  the  income  between 


the  Congregational  and  Episcopal  societies, 
and  providing  for  the  appointment  of  trustees, 
but  with  a  proviso  that  it  should  be  in  the 
power  of  the  Legislature,  on  the  future  appli- 
cation of  any  new  denomination  of  Christians 
in  the  town,  to  make  a  new  appropriation. 
In  1814,  the  proviso  reserving  power  to  the 
Legislature  was  repealed,  and  the  actual  ap- 
propriation confirmed.  In  1837,  the  Legisla- 
ture on  the  application  of  the  Baptists  passed 
a  resolve,  that  a  portion  of  the  income  should 
be  paid  to  that  society.  It  was  held,  that  un- 
der the  special  circumstances  of  the  case,  the 
repeal  of  the  proviso  was  neither  a  renuncia- 
tion nor  a  final  execution  of  the  power  re- 
served to  the  Legislature,  and  did  not  pre- 
clude them  from  exercising  the  power  re- 
served; and  that  the  resolve  of  1837  was 
valid.  But  the  court  said,  "  Whether  this 
power,  reserved  as  a  perpetual  benefit  in 
favor  of  denominations  of  Christians  who 
should  afterwards  spring  up  in  that  town, 
could  be  renounced  by  one  Legislature  so  as  to 
bind  their  successors,  if  done  after  notice  to 
all  parties  then  existing;  or  whether  the 
court  would  be  bound  to  presume  that  an  act 
done  by  the  Legislature  was  done  after  due 
notice, — are  questions  of  difficulty,  on  which 
we  give  no  opinion."  Per  Shaw,  C.  J.  in 
Congr.  Soc.  in  Lanesboro'  v.  Curtis,  22  Pick. 
332  ;  see  also  Humphrey  v.  Whitney,  3  Pick. 
158. 

t    Ante,  p.  581. 


600  MEASURES   OF  PUBLIC  POLICY. 

ute  fixing  the  emoluments  of  a  public  office ;  and  where  a  Penn- 
sylvania act  reduced  the  per  diem  compensation  of  a  public 
officer  during  the  term  for  which  the  office,  with  its  remunera- 
tion, had  been  fixed  by  a  previous  statute,  it  was  held  that  the 
original  law  created  no  contract.*  So,  a  grant  by  a  Legislature 
to  a  county,  of  a  sum  forfeited,  may  be  refunded.  Such  a  grant 
creates  no  contract,  on  the  ground  that  it  is  made  to  a  public 
body,  and  for  public  not  private  purposes.f  So,  the  grant  of  a 
ferry  franchise  to  a  town,  creates  no  contract  by  which  the 
town  can  claim  a  permanent  right  to  the  ferry ;  and  the  Legis- 
lature may,  in  its  pleasure,  discontinue  the  ferry ;  and  this,  both 
on  the  ground  that  the  ferry  franchise  related  only  to  public 
interests,  and  also  that  the  town  was  a  mere  organization  for 
public  purposes,  and  that  the  grant  was  rather  in  the  nature  of 
legislation  than  of  compact.  J 

The  same  doctrine  has  been  applied  to  municipal  ordinances ; 
and  it  has  beefl  decided  that  the  corporation  of  cities  cannot 
make  permanent  and  irrepealable  contracts  in  regard  to  matters  of 
public  interest ;  or,  as  the  proposition  is  sometimes  put  in  other 
words,  that  they  cannot  strip  themselves  of  any  portion  of  their 
legislative  power.  So,  it  has  been  held  by  the  Supreme  Court  of 
the  United  States,  in  regard  to  an  ordinance  for  grading  streets ;  | 
and  so  in  New  York,  in  regard  to  ordinances  regulating  the  inter- 

7  O  O  O 

ment  of  the  dead.^f  In  the  latter  case,  it  was  determined  that  or- 
dinances declaring  it  unlawful  to  inter  in  cities,  and  which  by 
their  necessary  operation  annulled  or  revoked  the  covenants  and 
permissions  contained  in  prior  grants  of  land  ceded  for  cemetery 
purposes,  were  valid.  It  was  held  that  this  was  so,  although  the 
contract  was  thus  annulled  by  the  very  body  that  made  it.  It 
was  said,  "  There  is,  indeed,  a  seeming  inconsistency ;  but  the 
defendants,  the  city,  had  no  power  to  limit  the  legislative  dis- 

*  Butler c? a/.  T.Pennsylvania,  10 How. 416.  |  Goszler  v.  The  Corporation  of  George- 

f  The  State  of  Maryland  v.  Bait.  &  Ohio  town,  6  Wheat.  593. 

Pt.  K.  3  Howard,  551.     See  also,  The  People          J  Presb.  Church  v.  City  of  N.  Y.  5  Cowen, 

v.   Morris,   13   Wend.   325;    The   Common-  542;  Coates  &  Stuyvesant  v.  The  Mayor  of  N. 

wealth  T.  Bacon,  6  Serg.  &  Rawle,  322 ;  The  Y.  7  Cow.  58.     So  decided,  also,  by  Nelson, 

Commonwealth  v.  Mann,  5  Watts  <fe  Sergeant,  J.,in  The  Mayor  v.  Brittain  (not  reported),  in 

418;    Barker  v.  The  City  of  Pittsburgh,  4  regard  to  a  street-cleaning  contract.     I  am  in  - 

Barr,  Penn.  R.  51.  debted  for  this  last  case  to  the  kindness  of  M. 

$  East  Hartford  v.  Hartford  Bridge  Co.  10  V.  B.  Wilroyson,  Esq.,  assistant  counsel  to  the 

Howard,  534.     See  also,  Mills  v.   St.  Clare  corporation. 
Company,  8  Howard,  569,  581. 


MUNICIPAL    ORDINANCES. 


601 


cretion  by  covenant,  and  they  are  not  estopped  from  giving 
this  answer." 

The  most  serious  question  that  yet  exists  in  regard  to  the 
true  meaning  of  the  phrase  contract  under  this  clause,  relates 
to  the  subject  of  marriage.  It  has  been  insisted  that  the  Con- 
stitutional clause  only  related  to  pecuniary  contracts ;  and  in 
regard  to  marriage,  it  has  been  urged  that  the  agreement  is  not 

O  O     7  ~  O 

strictly  a  contract,  but  a  civil  relation,  entirely  subject  to  the 
control  of  municipal  law.  On  this  point,  different  and  conflict- 
ing decisions  have  been  made.  In  Missouri,  adhering  to  an  in- 
timation very  early  made  obiter  by  the  Supreme  Court  of  the 
United  States,  f  it  has  been  decided  that  marriage  is  a  contract 
within  the  meaning  of  the  Constitution,  and  protected  by  the 
clause  in  question ;  and  an  act  of  the  General  Assembly  grant- 
ing a  divorce,  was  held  unconstitutional  and  void.J 

On  the  other  hand,  in  Maine,  the  Supreme  Court  has  held 
that  the  clause  in  regard  to  the  obligation  of  contracts,  does 

O  O  / 


*  Presb.  Church  v.  City  of  N.  Y.  5  Cowen, 
p.  542. 

la  England,  it  has  been  said  that  a  deed, 
or  covenant,  cannot  operate  in  direct  opposi- 
tion to  an  act  of  Parliament ;  which  negatives 
the  idea  of  the  party  being  prevented  by  es- 
toppel from  setting  up  the  act.  Fair  Title  v. 
Gilbert,  2  T.  R.  171. 

In  connection  with  this,  I  may  here  notice 
the  question  whether  an  agreement  to  do  a 
thing  lawful  at  the  time  is  annulled  by  a  stat- 
ute declaring  the  act  unlawful.  In  an  early 
case,  1683,  it  was  held,  that  if  the  thing  to  be 
done  was  lawful  at  the  time  when  the  defend- 
ant entered  into  the  covenant,  though  after- 
wards prohibited  by  act  of  Parliament,  yet 
the  covenant  was  binding.  Brason  v.  Dean, 
3  Mod.  39. 

But  a  different  and  more  rational  doctrine 
was  soon  after  laid  down ;  and  it  was  declared 
that  the  distinction  between  the  cases  when  a 
statute  repeals  a  covenant  and  when  it  does 
not,  is  this : — when  a  man  covenants  not  to 
do  a  thin<j  which  was  lawful  for  him  to  do, 
and  an  act  of  Parliament  comes  after  and  com- 
pels him  to  do  it, — then  the  act  repeals  the 
covenant ;  so,  if  a  man  covenant  to  do  a  thing 
which  is  lawful,  and  an  act  of  Parliament 
comes  and  hinders  him  from  doing  it,  the  cov- 
enant is  repealed ;  but  if  a  man  covenants  not 
to  do  a  thing  which  then  was  unlawful,  and  an 
act  comes  and  makes  it  lawful  to  do  it, — such 
act  of  Parliament  does  not  repeal  the  covenant. 
Brewster  v.  Kitchin,  1  Ld.  Ray.  317;  s.  c.  1 
Salk.  198.  The  same  rule  has  been  declared 
in  New  York,  and  applied  to  municipal  cor- 


porations, as  above.  Presb.  Church  v.  City 
of  N.  Y.  5  Cowen,  542. 

f  Dartmouth  College  T.  "Woodward,  4 
Wheaton,  518. 

\  The  State,  to. the  use  of  Gentry  v.  Fry, 
4  Miss.  120.  The  divorce  was  also  pronounced 
unconstitutional  on  the  ground  that  the 
grant  of  a  divorce  was  a  judicial  and  not  a 
legislative  act.  See  this  case,  also,  for  an 
elaborate  discussion  on  the  subject  of  the  dis- 
tribution of  powers  between  the  Legislature 
and  the  judiciary  and  the  executive.  The 
case  of  Bryson  v.  Campbell,  12  Miss.  498, 
was  decided  in  1849,  on  the  authority  of 
Gentry's  case,  which  was  said  to  be  the 
settled  law  of  the  State. 

Several  other  points  decided  in  this  case 
may  be  noticed  here.  Retrospective  laws 
are  said  neither  to  accord  with  sound  legisla- 
tion, nor  with  the  fundamental  principles  of 
the  social  compact.  Yet  the  Constitution  of 
the  United  States  has  not  made  any  provision 
against  their  passage,  and  many  of  the  State 
Constitutions  contain  no  guard  against  them. 
All  such  retrospective  laws  may  be  passed, 
and  when  passed  are  binding  and  obligatory 
on  the  judiciary.  The  Constitution,  however, 
of  this  State  has  provided  against  these  laws 
in  express  terms  ;  and,  therefore,  all  such  as 
have  a  retrospective  action,  either  upon  con- 
tracts or  other  acts,  are  by  this  provision 
void.  P.  135. 

It  is  conceded  that  the  Legislature  is  not 
bound  to  assign  a  cause  for  the  passage  of 
any  law.  P.  156. 

The  right  of  the  judiciary  to  decide  a  law 


MARRIAGE   AM)    DIVORCE. 

not  relate  or  apply  to  marriages.*  They  said,  however,  at  the 
same  time,  that  under  the  clause  in  regard  to  the  division  of 
power  into  executive,  legislative,  and  judicial,  the  Legislature 
had  no  power  to  grant  divorces  in  cases  where  the  Supreme 
Court  had  jurisdiction ;  but  that  the  power  to  grant  divorces 
existed  where  that  tribunal  had  no  jurisdiction. 

In  Connecticut,  too,  legislative  divorces  have  been  sus- 
tained ;  and  it  has  been  said  that  they  were  neither  invalid  as 
within  the  Constitutional  clause,  nor  repugnant  to  the  State 
Constitution  as  an  assumption  of  judicial  power  by  the  Legisla- 
ture ;  but  much  stress  was  laid  on  the  appalling  consequences  of 
declaring  all  the  legislative  divorces  of  the  State  void  ;  and  the 
result  appears  to  have  been  arrived  at  more  on  that  ground  than 
on  any  other.f  It  has  also  been  said,  in  New  York,  that  marriage 
was  not  a  contract,  in  the  strict  common-law  sense  of  that  term.  J 

In  Florida,  the  marriage  contract  is  considered  within  the 
protection  of  the  Constitution.  |  But  in  Kentucky  it  is  treated 
as  an  institution  created  by  the  public  law,  and  subject  to  the 
public  wilLT  And  this,  according  to  Mr.  Chancellor  Kent,  is 
the  true  construction.** 

The  act  of  New  York,  of  1848,  entitled,  "An  Act  for  the 
more  effectual  protection  of  the  property  of  married  women," 
of  which  the  object  was  to  make  a  complete  change  of  the  rela- 
tions of  husband  and  wife  as  regards  property,  declares  that 
the  real  and  personal  property,  and  the  rents,  issues,  and  profits 
thereof,  of  any  female  now  married,  shall  not  be  subject  to  the 
disposal  of  her  husband,  but  shall  be  her  sole  and  separate 
property,  except  so  far  as  the  same  may  be  liable  for  the  debts 

to  be  unconstitutional,  follows  inevitably  from  |  Ponder  v.  Grahnm,  4  Florida,  23. 

its  duty  to  declare  what  the  law  is.    P.  178.  ^[  Maguire  v.  Maguire,  7  Dana,  184. 

In  New  York,  in  the  following  cases,  it          **  Kent  Comm.  vol.  i,  p.  417,  note.    I  cite 

has  been  intimated  that  the  contract  of  mar-  the  8th  edition. 

riage,  and  its  incidents,  as  the  wife's  right  of  In  New  Hampshire,  it  has  been  decided 
dower,  are  within  the  provisions  of  the  Con-  that  a  grant  of  a  divorce  is  a  judicial  proceed- 
stitution  as  to  the  obligation  of  contracts,  ing ;  that  the  Legislature  may  provide  by 
Kelly  v.  Harrison,  2  J.  Cases,  29 ;  Jackson  v.  general  laws,  having  no  retrospective  effect, 
Edwards,  22  Wend.  498  ;  Lawrence  v.  Miller,  for  the  dissolution  of  existing  marriages ;  but 
2  Corns.  245.  See,  also,  Moore  v.  The  Mayor,  that  an  act  altering  the  law  of  the  contract, 
4  Seld.  110,  as  to  dower,  and  Westervelt  v.  and  empowering  the  courts  to  grant  divorces 
Gregg,  2  Kernan,  202,  as  to  the  husband's  for  causes  which,  when  they  occurred,  fur- 
right  to  the  wife's  choses  in  action.  Ante,  p.  nished  no  ground  for  the  dissolution  of  the 

marriage,  is  a  retrospective  law,  within  the 

*  Opinion  of  Justices,  16  Maine,  479.  provision  of  the  Constitution  of  that  State, 

f  Starr  v.   Pease,  8  Conn.  548.     See  the  and  as  such  void.     Clark  v.  Clark,  10  N.  H. 

opinion  of  Peters,  J.,  in  part  dissenting.  381.      See,   in   this   case,   the   comments   of 

\  White  v.  White,  5  Barb.  474.  Parker,  C.  J.,  on  the  Dartmouth  College  Case. 


MARRIAGE   AND    DIVORCE.  603 

of  the  husband  heretofore  contracted.  It  has  been  held  that 
this  law,  so  far  as  it  was  intended  to  affect  existing  rights  of 
property  in  married  persons,  was,  in  regard  to  marriages  cele- 
brated before  its  passage,  unconstitutional  and  void;  on  the 
ground  that,  as  regards  property,  the  contract  of  marriage 
must  stand  on  the  same  footing  as  other  contracts ;  that  the 
law,  as  it  existed  at  the  time  of  the  making  of  the  contract, 
formed  part  of  the  contract.* 

In  the  same  State,  however,  it  has  been  held  that  dower  is 
not  the  result  of  a  contract,  but  a  positive  institution  of  the 
State  ;  and  a  law  extinguishing  the  wife's  right  to  dower  during 
the  husband's  lifetime,  does  not  infringe  the  provision  of  the 
Federal  Constitution  in  regard  to  contracts,  f 

I  may  close  this  branch  of  niy  subject  by  stating  that  it  has 
been  intimated  that  the  constitutional  provision  applies  to 
cases  of  contract  strictly ;  and  that  where  the  obligation,  though 
of  a  pecuniary  nature,  results  from  a  duty  imposed  on  the  party 
by  statute,  it  is  wholly  under  legislative  control.^ 

We  proceed  to  the  second  head  of  inquiry  in  regard  to  the 
clause  of  the  Constitution  now  under  discussion.  WJiat  acts  of 
State  legislation  are  considered  to  impair  the  obligation  of  a  con- 
tract ?  (a)  In  reference  to  this,  at  the  outset,  we  may  remark 
that,  so  far  as  regards  the  legislation  of  the  several  States,  the 

*  Holmes  v.  Holmes,  4  Barbour,  296,  per  \  Per  Gridley,  J.,  17  Barb.  116,  in  regard 
Barculo,  J.  to  the  laws  regulating  manufacturing  cor- 

f  Moore  v.  The  Mayor,  <fec.  4  Selden,  110.     porations  in  New  York. 

(a)  What  is  meant  by  the  Obligation  of  a  Contract  f — Undoubtedly  much  of  the 
conflict  in  the  judicial  decisions  attempting  to  give  a  construction  to  this  constitu- 
tional provision,  has  grown  out  of  a  misapprehension  of  the  meaning  of  the  phrase 
"  obligation  of  contracts."  The  general  tendency  of  the  State  courts  has  been  to  up- 
hold certain  classes  of  State  legislation  which  affect  the  integrity  of  contracts  in  an 
indirect  manner,  such  as  stay  laws,  exemption  laws,  and  the  like ;  and  in  this  course 
of  judicial  decision  such  courts  have  either  expressly  or  by  necessary  implication 
restricted  the  application  of  the  word  "  obligation  "  to  the  very  matters  embraced 
within  the  stipulations  of  the  contracting  parties,  so  that  legislation  which  did  not 
assume  to  interfere  in  terms  with  these  stipulated  matters  was  pronounced  valid. 
The  Supreme  Court  of  the  United  States,  as  the  ultimate  judicial  interpreter  of  the 
national  Constitution  has,  however,  on  several  occasions  corrected  the  errors  of  the 
State  judiciary,  and  has  given  a  definition  of  the  word  and  phrase  which  must  be 
authoritative  and  final.  We  quote  the  definition  as  given  in  one  or  two  cases :  "  The 
obligation  of  a  contract  consists  in  its  binding  force  on  the  party  who  makes  it. 
This  depends  upon  the  laws  in  existence  when  it  was  made ;  these  are  necessarily 
referred  to  in  all  contracts,  and  forming  a  part  of  them  as  the  measure  of  the  obliga- 


604  WHAT    IMPAIRS    A   CONTRACT. 

courts  of  the  United  States  have  no  right  to  interfere  by  virtue 
of  the  restraining  power  of  the  Federal  Constitution,  except  in 
the  two  cases  of  ex  post  facto  laws,  and  laws  impairing  the 
obligation  of  contracts.  The  States  may  pass  retrospective 
laws,  however  unjust ;  pass  acts  of  a  judicial  nature,  however 
clearly  overstepping  the  line  of  legislative  power ;  they  may 
pass  acts  divesting  vested  rights ;  they  may  violate  express 
provisions  of  their  own  Constitutions; — acts  of  these  classes, 

tion  to  perform  them  by  the  one  party,  and  the  right  acquired  by  the  other.  There 
can  be  no  other  standard  by  which  to  ascertain  the  extent  of  either  than  that  which 
the  terms  of  the  contract  indicate  according  to  their  settled  legal  meaning ;  when  it 
becomes  consummated,  the  law  defines  the  duty  and  the  right,  compels  the  one 
party  to  perform  the  thing  contracted  for,  and  gives  the  other  a  right  to  enforce  the 
performance  by  the  remedies  then  in  force."  McCracken  v.  Haywarcl,  2  How.  (U.  S.) 
612,  per  Baldwin,  J.  In  Curran  v.  Arkansas,  15  How.  (U.  S.)  304,  319,  Mr.  Justice 
Curtis  very  concisely  said :  "  The  obligation  of  a  contract,  in  the  sense  in  which 
these  words  are  used  in  the  Constitution,  is  that  duty  of  performing  it  which  is  recog- 
nized and  enforced  ty  the  laics.  And  if  the  law  is  so  changed  that  the  means  of 
legally  enforcing  this  duty  are  materially  impaired,  the  obligation  of  the  contract  no 
longer  remains  the  same."  This  short  definition  is  perfectly  accurate,  if  we  remem- 
ber that  there  can  be  no  duty  resting  upon  one  contracting  party  without  a  corre- 
sponding right  held  by  the  other,  and  that  the  "  obligation  "  embraces  both  these 
legal  relations.  "  These  propositions  may  be  considered  consequent  axioms  of  our  juris- 
prudence. The  laws  which  exist  at  the  time  and  place  of  the  making  the  contract  and 
when  it  is  to  be  performed,  enter  into  and  form  a  part  of  it.  This  embraces  alike  those 
which  affect  its  validity,  construction,  discharge,  and  enforcement.  Nothing  is  more 
material  to  the  obligation  of  a  contract  than  the  means  of  its  enforcement.  The  ideas 
of  validity  and  remedy  are  inseparable,  and  both  are  parts  of  the  obligation,  which  is 
guaranteed  by  the  Constitution  against  impairment.  The  obligation  of  a  contract '  is 
the  law  which  binds  the  parties  to  perform  their  agreement.'  Any  impairment  of  the 
obligation  of  a  contract — the  degree  of  the  impairment  is  immaterial — is  within  the 
prohibition  of  the  Constitution."  Walker  v.  Whitehead,  16  Wai.  314,  317,  per  Swayne, 
J.  We  cite  the  definition  given  by  a  recent  text  writer  based  upon  an  analysis  of  the 
decisions  of  the  U.  S.  Supreme  Court  and  of  the  word  as  used  in  the  Roman  law  where 
it  is  a  term  of  science.  "  First  the  term  is  not  to  be  restricted  to  '  duty  ; '  it  is  to  be 
taken  in  its  Roman  sense  as  including  '  right '  as  well  as  duty  ;  it  is  '  obligatio]  the 
binding — the  binding  of  two  things  together,  namely,  the  right  of  one  party  and  the 
duty  of  the  other  ;  which  binding  is  done  by  the  law.  Secondly,  '  the  obligation  of  a 
contract,1  is,  therefore,  the  collective  legal  rights  and  duties  which  the  existing  law 
applicable  to  the  contract  raises  or  creates  out  of  or  from  the  stipulations  of  the  par- 
ties ;  rights  which  it  devolves  upon  one  party,  and  corresponding  duties  which  it  lays 
upon  the  other.  *  *  *  *  It  may  be  considered,  therefore,  as  settled  that  the  obli- 
gation of  a  contract  is  not  what  the  parties  have  in  terms  agreed  to  do  or  to  forbear; 
but  is  the  legal  effect  given  to  those  agreements  by  the  whole  of  the  existing  law  ap- 
plicable to  such  contract ;  it  includes  the  rights  and  duties  which  the  whole  existing 
law  creates  from  the  fact  of  such  contract  being  made."  Pomeroy's  Introduction  to 
Const.  Law,  §§  592,  594.  See  Walker  v.  Whitehead.  16  Wall.  314,  317. 


WHAT   IMPAIRS  A  CONTRACT.  605 

however  objectionable,  are  not  within  the  scope  of  the  restric- 
tion of  the  Federal  Constitution,  and  give  no  right  of  appeal 
from  the  decisions  of  the  State  tribunals.*  Questions  of  this 
nature  can  only  be  presented  in  the  Supreme  Court  of  the 
United  States  in  cases  arising  in  the  circuit  courts,  within  the 
jurisdiction  given  to  them  under  the  Constitution  of  the  United 
States,  and  where,  consequently,  the  circuit  courts  exercise  all 
the  powers  of  the  State  tribunals.  In  regard  to  the  present 
subject  of  investigation,  therefore,  the  inquiry  is,  What  legisla- 
tion is  held  to  impair  contracts  f  And  in  regard  to  this,  it  is 
well  here  to  remark  that  it  has  been  said,  by  a  very  eminent 
judge  of  the  Supreme  Court  of  the  United  States,  that  "  after 
a  careful  examination  of  the  questions  adjudged  by  this  court, 
they  seem  not  to  have  decided  in  any  case  that  the  contract  is 
impaired,  within  the  meaning  of  the  Constitution,  where  the 
action  of  the  State  has  not  been  on  the  contract."  f 

The  clause  of  the  Constitution  embraces,  as  we  have  seen, 
private  agreements,  or  agreements  inter  partes ;  and  public 
agreements,  as  they  may  be  called,  resulting  from  acts  of  legis- 
lation. In  regard  to  public  agreements  growing  out  of  statutes 
creating  charters,  and  similar  enactments,  the  questions  arising 
in  regard  to  what  acts  impair  them  have  not  been  numerous,  as 
the  case  generally  turns  on  the  true  construction  of  the  act  con- 
taining the  alleged  contract.  But  in  regard  to  private  agree- 
ments, the  subject  of  our  present  inquiry  has  presented  many 
veiy  perplexing  subjects  of  investigation,  (a) 

*  Calder  v.  Bull,  3  Dall.  380 ;  Satterlee  v.  claiming  under  it.  It  was  objected,  that  the 
Matthewson,  2  Peters,  413  ;  the  Charles  River  act  of  1826  violated  the  obligation  of  a  con- 
Bridge  Case,  11  Peters,  538.  See  comments  tract;  but  the  Supreme  Court  said  that  it  did 
of  Mr.  Senator  Verplank,  in  Cochran  v.  Sur-  not,  either  in  its  terms  or  in  its  principles ; 
lay,  20  "Wend.  379,  on  Fletcher  v.  Peck  and  and  they  held  the  plaintiff's  recovery  below 
Satterlee  v.  Matthewson.  Watson  v.  Mercer,  final  and  conclusive, — declaring, '  also,  that 
8  Peters,  110;  Bait,  and  S.  R.  R.  v.  Nesbit,  the  court  had  no  right  to  pronounce  an  act 
10  Howard,  401  ;  East  Hartford  v.  Hartford  of  a  State  Legislature  void  as  contrary  to  the 
Bridge  Co.  10  Howard,  539.  Constitution  of  the  United  States,  from  the 

It  may  be  well  to  give  somewhat  at  mere  fact  that  it  divests  antecedent  vested 

length  one  of  these  cases.  In  1785,  a  deed  rights  ^f  property;  and  that  the  Constitution 

was  executed  of  lands  in  Pennsylvania,  which,  prohibited  no  retrospective  legislation,  ex- 

by  reason  of  a  defective  acknowledgment  un-  cepting  the  passage  of  tx  post  facto  laws — 

der  the  then  law,  was  insufficient  to  pass  the  which  term  is  only  applied  to  penal  and  crim- 

title.  In  1826,  a  statute  of  the  State  was  inal  laws, — and  laws  violating  the  obligation 

passed  to  cure  the  defect,  so  as  to  make  the  of  contracts.  Watson  v.  Mercer,  8  Peters,  88. 

deed  as  effectual  as  if  properly  acknowledged;  f  In  Charles  River  Bridge  v.  Warren 

and  ejectment  was  then  brought  by  parties  Bridge,  11  Peters,  581,  per  Mr.  Justice  M'Lean. 

(a)  What  State  Laws  Impair  the  Obligation  of  Contracts. — All  laws  which  can  by 


606  WHAT   IMPAIRS  A  CONTRACT. 

Of  these,  one  of  the  most  important  relates  to  the  control 
which  may  be  exercised  over  private  contracts,  in  the  shape  of 

possibility  impair  the  obligation  of  a  contract  must  apply  either  directly  to  the  terms 
thereof,  or  directly  to  the  remedy  by  which  it  is  to  be  enforced.  Such  impairing 
may  be  defined  to  be  the  preventing,  hampering,  or  hindering,  the  enjoyment  and 
enforcement  of  the  contract  rights  or  duties  by  any  legislation  which  was  not  neces- 
sarily in  the  contemplation  of  the  parties  at  the  date  of  the  contract,  as  being  either 
actually  provided  for  and  reserved  in  the  lex  loci,  or  as  being  a  possible  and  proper 
exercise  of  the  powers  of  taxation,  of  eminent  domain,  or  of  police.  In  other  words, 
all  such  legislation  as  was  expressly  provided  for  or  reserved  by  the  existing  law  at 
the  date  of  the  contract,  and  all  such  as  may  be  a  proper  exercise  of  either  of  the 
three  great  governmental  powers — taxation,  eminent  domain,  and  police — is  to  be 
considered  as  entering  into  and  forming  a  part  of  the  entire  contract  obligation,  as 
shaping  the  contract  rights  and  duties,  and  of  course  such  legislation  cannot  "  im- 
pair "  the  obligation.  "We  shall  consider  the  two  classes  above  stated  separately. 
The  obligation  may  be  impaired  not  only  by  State  statutes,  but  by  State  Constitu- 
tions. Railroad  Co.  v.  McClure,  10  Wai.  511 ;  Gunn  v.  Barry,  15  Wall.  610.  But 
the  decision  of  a  State  court  cannot,  be  reviewed  by  the  U.  S.  Supreme  Court  on  the 
ground  alone  that  sych  decision  impairs  the  obligation  of  a  contract.  Bethel  v. 
Demarest,  10  Wai.  537. 

Laws  which  apply  directly  to  the  Terms  of  the  Contract. 

State  Insolvent  Laws. — The  two  fundamental  propositions  stated  in  the  text  are 
settled  by  ample  authority  of  the  State  and  the  national  courts,  but  the  doubts  sug- 
gested upon  the  authority  of  Massachusetts  decisions  have  been  removed.  The 
following  is  a  resume  of  the  established  rules.  The  operation  of  State  insolvent 
laws  upon  pre-existing  contracts  being  to  destroy  their  obligation,  such  effect  is,  of 
course,  excluded  by  the  constitutional  guaranty.  Where  the  contract  is  made  after 
the  passage  of  the  insolvent  law,  between  citizens  of  the  State  in  which  the  law 
exists,  and  is  to  be  performed  in  that  State,  and  the  parties  continue  to  reside  there- 
in up  to  the  time  of  the  discharge,  the  discharge  is  valid.  Wilson  v.  Mathews,  32 
Ala.  332.  When  the  contract  is  made  between  citizens  of  different  States,  and  is 
not  by  its  terms  to  be  performed  in  the  State  of  the  debtor,  and  the  discharge  is 
obtained  in  the  latter  State,  and  the  creditor  has  done  nothing  to  waive  his  consti- 
tutional privilege,  the  discharge  is  clearly  invalid.  Whiting  v.  Whiting,  35  N.  H. 
457. 

The  courts  of  Massachusetts  for  a  time  maintained  the  doctrine  stated  in  the 
text,  that  if  the  contract,  by  its  express  terms,  was  to  be  performed  in  the  State 
where  the  debtor  resided  and  where  he  obtained  his  discharge,  the  creditor  would 
be  bound  by  such  discharge,  though  he  was  all  the  time  an  inhabitant  of  another 
State.  Scribner  v.  Fisher,  2  Gray,  43 ;  Marsh  v.  Putnam,  3  Gray,  551 , 563,  564.  But 
this  doctrine  has  been  completely  overturned,  and  it  is  settled  that  under  such  cir- 
cumstances, namely,  where  the  contract  was  by  its  express  terms  to  be  performed  in 
the  State  of  the  debtor's  residence,  and  in  which  he  obtained  his  discharge,  the 
debtor  and  the  creditor  being  inhabitants  of  different  States,  and  the  creditor  having 
done  nothing  to  waive  his  right,  the  discharge  would  be  void.  Baldwin  v.  Hale,  1 
Wai.  223 ;  Oilman  v.  Lockwood,  4  Wai.  409 ;  Kelly  v.  Drury,  9  Allen,  27  ;  Donelly 
v.  Corbett,  7  N.  Y.  500.  The  Supreme  Court  of  the  United  States  puts  its  decision 
upon  the  ground  that  such  insolvent  laws  have  no  extraterritorial  effect,  and  that 


WHAT  IMPAIRS   A  CONTRACT.  607 

State  insolvent  or  bankrupt  laws,  whether  acting  on  the  person 
or  property  of  the  debtor ;  whether  applying  to  subsequent  or 

as  the  rights  of  the  creditor  are  to  be  affected,  those  rights  must  be  taken  away  by 
laws  of  the  jurisdiction  of  which  he  is  a  member,  and  not  by  the  laws  of  any  other 
jurisdiction.  Notwithstanding  these  reasons  and  grounds  for  the  rule,  it  has  since 
been  held  in 'Massachusetts,  that  where  the  contract  was  made  between  citizens  of 
the  same  State,  and  was  to  be  performed  in  that  State,  a  discharge  granted  therein 
under  an  insolvent  law  in  force  at  the  date  of  the  contract  is  good,  although  the 
creditor  has  before  such  discharge  removed  his  residence  to  another  State.  Stoddard 
v.  Harrington,  100  Mass.  87.  In  this  case,  the  Massachusetts  couit  adheres  to  the  doc- 
trine that  the  right  or  capacity  of  discharge  inheres  in  the  contract  itself. 

It  is  conceded  by  all  the  cases  that  if  the  creditor  voluntarily  makes  himself  a 
party  to  the  proceedings  in  insolvency,  he  is  bound  by  them  wherever  he  may  reside, 
and  cannot  afterwards  object  to  the  validity  of  the  discharge  on  account  of  his  own 
residence.  This  rule  seems  to  assume  that  the  effect  of  the  discharge  depends  upon 
the  creditor's  status  or  acts,  and  not  upon  any  quality  originally  impressed  upon  the 
contract. 

Laws  affecting  Private  Corporations. — Laws  imposing  new  burdens  upon  chartered 
corporations  not  municipal,  or  taking  away  their  privileges,  impair  the  obligation  of 
the  contract;  but,  on  the  other  hand,  such  corporations  are  not  exempt  from  the 
exercise  of  the  State's  powers  of  taxation,  of  eminent  domain,  or  of  police ;  and  if 
the  State  had  reserved  in  the  charter  itself,  or  in  a  general  statute,  the  power  to 
alter  or  repeal  the  charter,  such  express  power  would  form  part  of  the  obligation, 
and  could  be  exercised. 

The  following  cases  are  illustrations  of  the  first  branch  of  the  proposition ;  The 
Legislature  cannot  declare  a  charter  forfeit,  or  transfer  the  franchises  or  obligations 
to  another  corporation.  Bruffett  v.  Great  Western  R.  R.  25  111.  353.  And  an  act 
providing  for  the  throwing  open  of  turnpike  gates  if  the  road  should  be  found  out 
of  repair  by  commissioners  was  held  invalid.  Powell  v.  Sarnmons,  31  Ala.  552.  And 
though  the  remedy  for  enforcing  a  forfeiture  of  the  charter  may  be  altered  and  made 
more  efficient,  no  new  cause  of  forfeiture  can,  it  seems,  be  created.  A.  &  L.  Turnpike 
Co.  v.  Holthouse,  7  Iml.  59 ;  People  v.  Jackson  &c.  Co.  9  Mich.  285.  The  Legislature 
cannot  compel  a  canal  company  to  rebuild  and  repair  bridges  over  its  canal.  Erie 
v.  Erie  Canal  Co.  59  Penn.  St.  174.  Nor  compel  it  to  make  fishways.  Common- 
wealth v.  Penn.  Canal  Co.  66  Penn.  St.  41.  A  statute  providing  that  the  coupons 
upon  certain  bonds  issued  thereunder  shall  be  received  in  payment  of  all  taxes  and  ' 
other  dues  to  the  State  is  a  contract,  and  a  repeal  of  it  is  void  as  to  such  coupons. 
Antoni  v.  Wright,  22  Gratt.  833.  And  see  Micou  v.  Tallassee  B'dg  Co.  47  Ala.  652; 
Ala.  &c.  R.  R.  v.  Burkett,  46  Ala.  569.  But  see  Chapin  v.  Crnsen,  31  Wise.  209. 

In  the  foregoing  and  in  the  following  cases  it  must  be  understood  that  no  power 
had  been  reserved  for  the  Legislature  to  modify  or  repeal  the  charters,  and  that 
the  charters  themselves  contained  no  provisions  permitting  the  acts  done  by  the 
Legislatures. 

The  following  cases  are  illustrations  of  the  second  branch  of  the  proposition : 
It  has, been  very  generally  held  that,  under  the  police  power  of  the  State,  although 
the  original  charters  contained  no  provisions  to  that  effect,  railroads  may  be  com- 
pelled to  maintain  fences  and  cattle-guards  as  necessary  for  the  public  safety.  Gorman 
v.  Pacific  R.  R.  26  Mo.  441  ;  Trice  v.  Han.  &  St.  Jo.  R.  R.  49  Mo.  438 ;  Ohio  &c.  R.  R. 
v.  McClelland,  25  111.  140 ;  Blair  v.  Milwaukee  &c.  R.  R,  20  Wise.  254  ;  Winona  &c. 


608  WHAT  IMPAIRS  A   CONTRACT. 

pre-existing  engagements ;  whether  affecting  only  citizens  of 
the  State  passing  the  law,  or  having  an  extraterritorial  opera- 

R.  R.  v.  Waldron,  11  Minn.  515;  Thorpe  v.  Rutland  &c.  R.  R.  27  Vt.  140.  And 
crossings  of  highways  by  railroads  may  be  regulated.  Bangor  &c.  R.  R.  v.  Smith,  47 
Me.  34.  And  railroads  may  be  made  liable  for  cattle  killed  on  their  tracks.  Indiana 
&c.  R.  R.  v.  Kercheyal,  16  Ind.  84.  And  for  the  death  of  persons  caused  by  their 
negligence.  Board  of  Int.  Imp.  v.  Scearce,  2  Duv.  (Ky.)  576  ;  B.  C.  &  M.  R.  R.  v. 
State,  32  K  H.  215  ;  S.  W.  R.  R.  v.  Paulk,  24  Geo.  356 ;  Coosa  River  St.  Bt.  Co. 
v.  Barclay,  30  Ala.  120.  And  a  city  may  regulate  the  speed  of  trains  -within  its 
limits.  Whitson  v.  Franklin,  34  Ind.  392  ;  but  see  State  v.  Jersey  City,  5  Dutch. 
170.  A  lottery  franchise  may  be  repealed.  Moore  v.  State,  48  Miss.  147. 

A  reasonable  license  may  be  imposed  upon  street  cars.  Johnson  v.  Philadelphia, 
60  Penn.  St.  445 ;  but  see  Mayor  &c.  v.  Second  Av.  R.  R.  34  Barb.  41.  The  majority 
of  the  directors  of  a  railroad  may  be  required  to  reside  within  the  State.  State  v. 
Southern  &c.  Pac.  R.  R.  24  Tex.  80.  Insurance  companies  may  be  required  to  give 
certain  information  to  the  Insurance  Department.  State  v.  Mathews,  44  Mo.  523. 
And  officers  of  a  corporation  of  a  public  nature — e.  g.,  a  college — may  be  required, 
to  take  a  test  oath.  State  v.  Adams,  44  Mo.  570 ;  but  as  to  test  oaths,  see  note  on 
ex  post  facto  laws. 

The  true  limit  of  the  police  power  of  the  State  over  such  corporations  was  stated 
in  State  v.  Noyes,  47  Me.  189,  as  foll-ows:  That  such  regulations  may  be  imposed  as 
are  necessary  for  the  safety,  not  such  as  are  required  merely  for  the  convenience  of  the 
public.  In  accordance  with  this  doctrine,  a  statute  requiring  trains  to  wait  to  make 
connections  with  trains  on  another  road  was,  in  that  case,  held  unconstitutional.  State 
v.  Noyes,  uli  sup.  On  the  same  principle,  a  statute  imposing  a  tariff  of  way  freights 
was  held  void.  Hamilton  v.  Keith,  5  Bush  (Ky.)  458  ;  and  see  People  v.  New  York, 
32  Barb.  102.  See  also,  on  the  question  of  limit  upon  the  police  power,  People  v. 
Jackson  &c.  PI.  R.  9  Mich.  285,  307 ;  Washington  Bridge  Co.  v.  State,  18  Conn.  53 ; 
State  v.  Jersey  City,  5  Dutch.  170. 

The  following  additional  cases  illustrate  the  exercise  of  the  police  power  over 
corporations :  Veazie  v.  Mayo,  45  Me.  560 ;  Peters  v.  Iron  Mt.  R.  R.  23  Mo.  107 ; 
Grannahan  v.  Hannibal  &c.  R.  R.  30  Mo.  o46;  Galena  &c.  R.  R.  v.  Appleby,  28  111. 
283  ;  Horn  v.  Atlantic  &c.  R.R.  35  N.  H.  169 ;  s.  c.  36  N.  H.  440;  Smith  v.  Eastern 
R.  R.  35  N.  H.  356 ;  Bulkley  v.  N.  Y.  &  N.  H.  R.  R.  27  Conn.  479 ;  Jones  v.  Galena 
&c.  R.  R.  16  Iowa,  6;  Bradley  v.  Buffalo  &c.  R.  R.  34  N.  Y.  427;  Lyman  v.  Boston 
•»  &  Wor.  R.  R.  4  Cush.  288 ;  Fitchburg  R.  R.  v.  Grand  June.  R.  R.  1  Allen,  552 ;  s.  c. 
4  Allen,  198 ;  Clark's  Adm'r  v.  Han.  &  St.  Jo.  R.  R.  36  Mo.  202. 

Analogous  questions  may  arise  as  to  implied  powers  of  regulation  residing  in 
parties  other  than  the  State.  Thus,  on  the  sale  of  a  college  scholarship,  the  right  is 
impliedly  reserved  in  the  college  to  make  all  needful  rules  and  regulations  as  to  its 
enjoyment ;  but  a  regulation  requiring  students  under  the  scholarship  to  board  in  the 
college  was  held  unreasonable  and  to  impair  the  obligation  of  the  contract.  Illinois 
&c.  College  v.  Cooper,  25  111.  148. 

The  Power  of  Taxation. — The  exercise  of  this  sovereign  function  of  government 
cannot  be  considered  as  impairing  the  obligation  of  contracts,  whether  its  operation 
affects  charters  or  any  other  species  of  contract,  unless  under  the  doctrine  at  present 
accepted  by  the  U.  S.  Supreme  Court,  the  State  has  in  a  valid  manner,  upon  a  legal 
consideration,  granted  an  exemption  from  taxation.  The  cases  in  which  this  doc- 


WHAT    IMPAIRS  A  CONTRACT.  609 

tion.  These  topics,  partly  growing  out  of  the  clause  which  we 
are  now  considering,  partly  out  of  the  8th  section  of  the  4th 

trine  is  generally  applied  are  those  growing  out  of  taxation  of  private  corporations; 
but  the  doctrine  is,  of  course,  not  limited  to  such  cases.  Thus,  corporations  can  be 
taxed  by  general  law,  but  a  special  tax  on  the  franchises  of  a  single  corporation  would 
in  many  States  be  invalid  under  other  constitutional  provisions.  Erie  R.  R.  v.  Com- 
monwealth, 3  Brewst.  (Pa.)  868;  Bank  of  Republic  v.  County  of  Hamilton,  21  111.  53. 

The  bonds  of  a  corporation  may,  it  seems,  be  taxed,  and  the  .tax  deducted  from 
the  interest  due  bondholders.  Maltby  v.  Reading  &c.  R.  R.  52  Penn.  St.  140 ;  see 
Buffalo  &c.  R.  R.  v.  Commonwealth,  3  Brewst.  (Pa.)  374.  And  a  mortgage  may  be 
taxed,  the  tax  being  payable  by  the  mortgagor  and  deducted  from  the  interest  due 
the  non-resident  mortgagee.  Cook  v.  Smith,  1  Vroom,  387.  Where  the  State  had 
postponed  the  lien  of  its  mortgage  bonds,  on  a  railroad  to  allow  the  negotiation  of  first 
mortgage  bonds,  it  was  held  that  it  might  tax  the  gross  earnings  of  the  road  to  pay 
.the  interest  and  principal  of  its  postponed  mortgage  debt,  it  not  being  shown  that 
prompt  payment  of  interest  to  the  preferred  bondholders  was  endangered.  North 
Mo.  R.  R.  v.  Maguire,  49  Mo.  490.  But  where  the  State  was  sole  stockholder  in  a  State 
bank,  and  famished  all  the  capital,  it  was  held  that  the  claims  of  creditors  were  para- 
mount, and  that  an  act  authorizing  the  sale  of  the  effects,  &c.,  and  payment  of  the 
proceeds  into  the  State  treasury,  was  void.  State  v.  Bank  of  S.  C.  1  Rich.  N.  S.  63. 

It  has  been  held  in  Georgia  that  a  statute  taxing  certain  classes  of  debts,  and 
making  an  affidavit  that  such  tax  was  paid  within  six  months  after  the  act  was 
passed  a  condition  precedent  to  any  remedy  at  law  on  the  claims,  was  constitutional. 
Garrett  v.  Cordell,  43  Geo.  366 ;  Walker  v.  Whitehead,  Ib.  538 ;  Welborn  v.  Akin,  44 
Geo.  420  ;  Conally  v.  Peck,  Ib.  430 ;  and  see  West  v.  Sanson,  44  Geo.  295.  It  is  very 
plain  that  this  provision  as  to  the  condition  precedent  to  maintaining  actions  is  a 
gross  violation  of  the  constitutional  guaranty.  Granting  that  the  taxing  power  is 
unlimited,  that  the  State  may  tax  a  debt  out  of  existence  by  sweeping  it  all  into  the 
State  treasury,  all  remedy  on  contracts  cannot  be  taken  away  in  this  manner  as  an 
incident  of  the  taxing  power.  This  statute  was  held  void  in  Walker  v.  Whitehead, 
16  Wai.  314. 

Eminent  Domain. — The  power  of  eminent  domain,  when  exercised  either  upon 
the  property  of  private  individuals,  or  upon  the  property  and  franchises  of  corpora- 
tions, does  not  impair  the  obligation  of  contracts,  as  is  correctly  and  fully  stated  in 
the  text.  And  see  note  on  "  Eminent  Domain." 

But  an  act  for  the  extinguishment  of  ground  rents  on  payment  of  their  value  as 
found  by  a  jury  was  held  void,  the  taking  not  being  for  a  public  use.  Palairet's 
Appeal,  67  Penn.  St.  479. 

Laws  which  operate  directly  upon  the  Remedy. 

What  is  the  Remedy  ? — It  is  laid  down  in  all  cases  that  the  remedy  may  be  changed 
provided  the  obligation  of  the  contract  is  not  altered.  As  this  proposition  is  found 
in  decisions  of  the  United  States  Supreme  Court,  which  pronounce  State  laws  void 
which  extend  the  time  for  redemption  by  mortgagors  after  sale,  or  which  stay  exe- 
cution on  judgments  for  a  period ;  and  in  the  decisions  of  State  courts  which  pro- 
nounce State  laws  valid  that  exempt  most,  and  perhaps  all  of  the  debtor's  property 
from  execution,  and  which  hold  in  substance  that  the  obligation  of  a  contract  is  spent 
as  soon  as  a  judgment  is  recovered,  it  is  plain  that  there  is  a  double  meaning  in  it,  and 

that  different  courts  use  it  to  cover  entirely  different  conclusions.    In  many  decisions 
39 


610  WHAT  IMPAIRS   A  CONTRACT. 

Article,  giving  Congress  power  to  pass  bankrupt  laws,  have 
been  repeatedly  and  elaborately  considered.  Nor  are  they  yet 

of  State  courts,  besides  those  referred  to  in  the  text,  it  is  held  that  the  obligation  is 
not  impaired  provided  a  substantial  remedy  is  left  to  the  parties.  Van  Rensselaer  v. 
Snyder,  9  Barb.  302  ;  13  N.  Y.  299;  Same  v.  Bull,  19  N.  Y.  100  ;  Same  v.  Hays,  19 
N.  Y.  68;  Conkey  v.  Hart,  14  N.  Y.  22;  Story  v.  Furman,  25  N.  Y.  214  ;  Guild  v. 
Rogers,  8  Barb.  502;  Van  Baumbach  v.  Bade,  9  Wise.  559;  Smith  v.  Packard,  12 
Wise.  371;  Coriell  v.  Ham,  4  Greene  (Iowa),  455;  Maynes  v.  Moor,  16  lad.  116  ; 
Heyward  v.  Judd,  4  Minn.  483  ;  Swift  v.  Fletcher,  6  Minn.  550 ;  Auld  v.  Butcher,  Z 
Kans.  135  ;  Paschal  v.  Perez,  8  Tex.  348;  Grosvenor  v.  Chesley,  48  Me.  369;  Kenyon 
v.  Stewart,  44  Penn.  St.  179  ;  Clark  v.  Martin,  49  Penn.  St.  299 ;  Huntzinger  v.  Brock,  3 
Grant's  Cas.  243 ;  Mechanics'  &c.  B'k  Appeal,  31  Conn.  63.  And  some  State  cases  hold 
this,  even  though  the  new  remedy  be  less  effective,  convenient,  or  speedy.  Holloway 
v.  Sherman,  12  Iowa,  282  (statute  giving  mortgagor  in  foreclosure  suit  nine  months 
to  answer)  ;  Tarpley  v.  Harner,  17  Miss.  310  ;  Morse  v.  Gould,  11  N.  Y.  281 ;  Penrose 
y.  Erie  Canal  Co.  56  Penn.  St.  46  ;  Farnsworth  v.  Vance,  2  Cold.  108.  And  a  Kansas 
court  took  the  broad  ground  that  the  obligation  is  ended  when  a  judgment  on  the 
contract  is  obtained,  that  this  was  all  the  remedy  the  party  had  a  right  to  demand. 
Mede  v.  Hand,  5  Am.  Law  Reg.  N.  S.  82. 

The  conflict  in  decision  has  arisen  from  a  confusion  of  the  two  meanings  which 
may  be  given  to  the  word  "  remedy."  That  word  may  refer  to  and  describe  the 
secondary  or  sanctioning  right  by  which  the  observance  of  the  contract  is  made 
something  more  than  voluntary.  In  other  words,  it  may  describe  the  right  to  a 
specific  performance  of  the  contract  accruing  to  the  injured  party  in  some  cases,  or 
the  right  of  compensation  accruing  to  the  injured  party  in  all  cases,  as  soon  as  the 
contract  is  broken.  On  the  other  hand,  it  may  mean  the  mere  modes  and  methods 
by  which  this  secondary  and  sanctioning  right  is  made  available,  the  organization 
and  practice  of  the  courts,  the  rules  of  pleading,  the  rules  of  evidence,  and  the  like. 
If  the  decisions  of  the  United  States  Supreme  Court  are  carefully  examined,  it  is 
plain  that  when  they  speak  of  the  remedy  being  changed  without  impairing  the  ob- 
ligation of  contracts,  they  use  the  word  in  the  second  sense  above  stated,  and  that  in 
every  case  in  which  the  State  statute  has  taken  away  from  the  remedy  as  used  in  the  first 
sense  above  stated,  such  statute  has  been  pronounced  void.  On  the  other  hand,  many 
State  courts,  using  the  same  general  formula,  have  applied  it  to  the  remedy,  using 
the  word  in  both  of  the  above  significations,  and  have  sustained  statutes  which 
plainly  impaired  the  obligation  of  contracts.  It  should  be  remembered  that  in 
giving  a  construction  to  this  constitutional  guaranty,  the  national  court  is  supreme, 
and  the  ratio  decidendi  of  its  judgments  gives  the  principle  by  which  the  correctness 
of  all  other  decisions  is  to  be  tested.  See  Walker  v.  Whitehead,  16  Wai.  317. 

The  true  doctrine  was  very  concisely  and  accurately  stated  by  Ch.  J.  Merrick,  in 
Morton  v.  Valentine,  15  La.  Ann.  153 :  "  Statutes  pertaining  to  the  remedy  are  merely 
such  as  relate  to  the  course  and  form  of  proceedings,  but  do  not  affect  the  substance 
of  a  judgment  when  pronounced."  In  Butz  v.  City  of  Muscatine,  8  Wai.  575,  the  Su- 
preme Court  of  the  United  States  held  that  taking  away  remedies  existing  at  the  time 
a  contract  was  made,  impairs  its  obligation,  even  when  this  is  the  effect  of  judicial 
decisions  giving  a  new  construction  to  a  statute.  See  Olcott  v.  Supervisors,  16  Wai.  678. 

Stay  Laws.— The  cases  in  the  United  States  Supreme  Court  cited  in  the  text, 
namely,  Bronson  v.  Kinzie,  McCracken  v.  Hayward,  Grautly's  Lessee  v.  Ewing,  and 


WHAT  IMPAIRS  A  CONTRACT.  611 

exhausted ;  for  the  division  of  judicial  opinion  in  the  Federal 
tribunal  in  some  of  the  cases,  has  left  the  precise  point  decided 

« 

Howard  v.  Bugbee,  have  clearly  settled  the  following  rule :  That  State  statutes  which 
create  any  arbitrary  stay  of  execution  or  other  means  of  enforcing  judgment,  whether 
for  a  definite  or  for  an  indefinite  period,  when  l>y  the  procedure  of  the  courts  such  judg- 
ment might  be  executed  or  otherwise  enforced  sooner  were  it  not  for  the  stay,  are  void  as 
against  contracts  existing  at  the  time  such  statutes  were  passed.  The  essential 
remedial  right,  which  is  a  part  of  the  obligation  of  all  contracts,  implies  the  right 
to  have  the  contract  enforced  without  any  other  delay  than  the  ordinary  procedure 
of  the  courts  makes  necessary.  If  these  cases  do  not  establish  the  doctrine,  they  are 
meaningless.  Yet  State  courts  in  numerous  cases  have  sustained  the  validity  of 
such  stay  laws,  sometimes  on  the  broad  ground  that  the  Legislature  has  absolute  con- 
trol over  the  remedy,  and  sometimes  on  the  ground  that  the  particular  stay  was  for 
a  definite  period,  while  conceding  that  an  indefinite  stay  would  be  void.  The  fol- 
lowing are  such  cases :  A  statute  providing  for  a  stay  of  one  year  on  giving  good 
security  was  held  valid.  Farnsworth  v.  Vance,  2  Cold.  (Tenn.)  108.  Also  a  statute 
providing  for  a  stay  of  two  terms  and  twelve  months.  Ex  parte  Woods,  40  Ala.  77. 
Aliter,  if  act  provides  for  an  indefinite  stay,  Hid.  And  an  act  giving  mortgagors 
nine  months  in  which  to  answer  in  foreclosure  suits.  Holloway  v.  Sherman,  12  Iowa, 
282.  Also  an  act  passed  May  24,  1861,  forbidding  the  rendition  of  judgments  for 
debt  until  January  1,  1862  ;  the  court  saying  that  the  statute  did  not  deal  with  the 
remedy,  but  with  the  functions  and  powers  of  the  courts  !  !  Johnson  v.  Higgins,  3 
Mete.  (Ky.)  566 ;  Barkley  v.  Glover,  4  Mete.  (Ky.)  44.  Andr  acts  staying  suits  against 
persons  in  the  service  of  the  State  or  of  the  United  States  for  a  definite  time — "three 
years  or  during  the  war,"  in  Pennsylvania.  Breitinbach  v.  Bush,  44  Penn.  St.  313; 
Coxe  v.  Martin,  II.  322 ;  Huntzinger  v.  Brock,  3  Grant's  Cas.  243 ;  McCormick  v. 
Rusch,  15  Iowa,  127  ;  State  v.  McGinty,  41  Miss.  435 ;  per  contra,  see  State  v.  Carew, 
13  Rich.  498 ;  Hasbrouck  v.  Shipman,  16  Wise.  296  ;  Barnes  v.  Barnes,  8  Jones  (Law), 
366.  An  act  staying  execution  on  judgments  confessed  before  demand  due  until  de- 
mand becomes  due,  was  held  valid  in  Wood  v.  Child,  20  111.  209. 

The  following  are  cases  holding  the  "  stay  law  "  invalid  :  When  it  stayed  suits 
against  persons  in  the  service  "  during  the  war."  Clark  v.  Martin,  49  Penn.  St.  299. 
When  it  suspended  remedies  for  an  indefinite  time.  State  v.  Carew,  13  Rich.  (Law) 
498;  Wood  v.  Wood,  14  Rich.  (Law)  148;  Burt  v.  Williams,  24  Ark.  91 ;  Luter  v. 
Hunter,  80  Tex.  688 ;  Hudspeth  v.  Davis,  41  Ala.  389.  When  the  stay,  though  defi- 
nite, was  excessive — three  years.  Coffman  v.  Bank  of  Kentucky,  40  Miss.  29.  Pro- 
viding for  three  or  four,  annual  instalment:  \ycock  v.  Martin,  37  Geo.  124 ;  Jacobs 
v.  Suiallwood,  63  N.  C.  112  ;  Jones  v.  McMan  n,  SO  Tex.  720.  Until  the  second  term 
*fter  execution.  Stevens  v.  Andrews,  31  Mo.  205  ,  and  see  Taylor  v.  Stearns,  18  Gratt. 
244 ;  Cutts  v.  Hardee,  38  Geo.  350. 

It  will  not  make  the  stay  valid  that  it  is  conditioned  on  the  assent  of  o,  majority 
of  the  creditors.  Bunn  v.  Gorgas,  41  Penn,  St.  441.  Nor  can  debts  without  imprest 
be  made  to  bear  interest  as  a  compensation  for  the  stay.  Goggans  v.  Turnij/^eed,  1 
Rich.  N.  S.  80. 

Where  a  stay  is  expressly  waived  none  can  be  granted.  Billmeyer  v.  Evans,  40 
Penn.  St.  324 ;  Lewis  v.  Lewis,  47  Penn.  St.  127. 

Under  the  guise  of  a  stay  law  the  right  to  sue  cannot  be  permanently  taken 
away.  Thus,  a  statute  that  parties  concerned  in  the  rebellion  shall  be  forever  de- 


612  WHAT  IMPAIRS   A  CONTRACT. 

a  matter  of  controversy ;  and  I  think,  therefore,  that  I  shall  best 
attain  the  objects  of  this  treatise  by  a  reference  to  the  decisions, 

barred  from  collecting  their  debts  is  void.  Vernon  v.  Henson,  24  Ark.  242  ;  Reson 
T.  Farr,  Ib.  161.  And  a  statute  suspending  the  right  of  persons  aiding  the  rebellion 
to  prosecute  or  defend  actions  is  void.  Davis  v.  Pierse,  7  Minn.  13;  McFarland  v. 
Butler,  8  Minn.  116  ;  Jackson  v.  Butler,  11.  117. 

But  an  act  requiring  an  oath  of  loyalty  from  litigants  was  sustained,  in  Cohen  v. 
Wright,  22  Cal.  293. 

Stay  laws  are  valid  so  far  as  they  apply  to  future  contracts  between  parties  sub- 
ject to  the  jurisdiction.  Barry  v.  Iseman,  14  Rich.  L.  129.  A  statute  allowing  the 
mortgagor  six  months  instead  of  twenty  days  in  which  to  answer  in  foreclosure  suits 
was  held  valid  as  to  existing  mortgages,  in  Van  Baunibach  v.  Bade,  9  Wise.  559 ; 
Starkweather  v.  Hawes,  10  Wise.  125. 

Exemption  Laws. — Statutes  exempting  certain  property  of  debtors  from  execution 
have  generally  been  held  valid,  even  in  their  effect  upon  prior  contracts.  In  addition 
to  the  cases  mentioned  in  the  text,  the  following  sustain  such  exemptions :  Gronies 
v.  Bryne,  2  Minn.  89  ;  Stephenson  v.  Osborn,  41  Miss.  119 ;  Snider  v.  Heidelberger,  45 
Ala.  126;  Cusic  v.  Douglas,  3  Kans.  123;  Maxey  v.  Loyal,  38  Geo.  531.  But  the 
exemption  must  not  be  so  great  as  to  render  the  remedy  nugatory.  Stephenson  v. 
Osborne,  41  Miss.  119.  Such  statute  was  held  void  in  Kibbey  v.  Jones,  7  Bush,  243. 

Homestead  Exemptions. — The  same  is  true  of  statutes  authorizing  homestead  ex- 
emptions. Hardeman  v.  Downer,  39  Geo.  425  ;  Pulliam  v.  Sewall,  40  Geo.  73 ;  Gunn 
v.  Barry,  44  Geo.  351  (reversed  by  the  United  States  Supreme  Court,  see  below)  ; 
Cusic  v.  Douglas,  3  Kans.  123  ;  Root  v.  McGrew,  Ib.  215 ;  Hill  v.  Kessler,  63  N.  C. 
437 ;  In  re  Kennedy,  2  Rich.  N.  S.  216 ;  Mede  v.  Hand,  5  Am.  Law  Reg.  (N.  S.)  82. 
In  the  last  case,  and  in  the  other  Kansas  cases,  a  statute  exempting  160  acres  was 
upheld  and  applied  to  a  past  contract.  This  is  the  reductio  ad  dbsurdum  of  the  argu- 
ment, that  changing  the  remedy  does  not  impair  the  obligation.  In  "  The  Home- 
stead Cases,"  22  Gratt.  266,  a  clause  of  the  Virginia  Constitution  providing  for  a 
homestead  exemption,  and  a  statute  passed  in  pursuance  thereof,  were  held  void  as 
to  existing  debts.  The  opinion  is  a  careful  discussion  of  the  whole  subject.  The 
Supreme  Court  does  not  seem  as  yet  to  have  passed  upon  the  validity  of  such  ex- 
emption laws  in  their  application  to  past  contracts.  We  think,  however,  that  the 
principles  laid  down  by  that  tribunal  would  condemn  many  of  them.  The  Georgia 
statute  has  just  been  passed  upon  by  the  U.  S.  Supreme  Court.  A  creditor  had  ob- 
tained a  judgment,  which  at  the  time  was,  by  existing  law,  a  lien  on  all  the  lands 
of  the  debtor,  with  some  slight  exemption.  Before  the  judgment  was  enforced,  the 
new  Constitution  was  adopted,  which  declares  that  a  householder  shall  be  entitled 
to  an  exemption  of  a  homestead  to  the  value  of  $2,000  in  specie,  and  personal  prop- 
erty to  the  value  of  $1,000  in  specie,  &c.  The  State  courts,  in  the  series  of  cases 
above  cited,  held  that  this  applied  to  existing  contracts,  and  even  destroyed  the  lien 
of  existing  judgments.  The  exact  point  raised  by  the  facts,  and  decided  by  the 
U.  S.  Supreme  Court,  was  that  the  provision  was  void  so  far  as  it  purported  to  affect 
the  lien  of  existing  judgments.  Gunn  v.  Barry,  15  Wall.  610.  It  cannot  be  said, 
therefore,  that  the  national  court  has  directly  passed  upon  the  broad  question 
whether  exemption  laws  are  valid  as  against  existing  contracts,  and  doubtless  many 
State  courts  will  still  insist  that  they  only  touch  the  remedy.  But  the  ratio  deci- 
dendi — the  whole  course  of  argument — of  the  case  plainly  covers  such  statutes  in 


WHAT   IMPAIRS  A  CONTRACT.  613 

and  a  brief  statement  of  the  points  generally  understood  to 
have  been  adjudged.* 

*  The   cases   in    the  Supreme  Court   of  Penn.   v.   Smith,   6  Wheat.    131 ;    Ogden  v. 

the  United  States  are — St-ur^es  v.  Crownin-  Saunders,  12  Wheat.  213;  Boyle  v.  Zacharie, 

shield,  4  Wheat.  200;  M'Millen  v.  M'JNeill,  4  6  Peters,  635;    Cook  v.   Moffat,  5  Howard, 

Wheat.  209;  Farmers  &  Mechanics'  Bank  of  295  ;  Bronson  v.  Kinzie,  1  Howard,  811. 

their  operation  upon  the  existing  contract,  and  is  not  confined  to  their  operation  upon 
an  existing  judgment  lien.  The  opinion  of  the  court,  per  Swayne,  J.,  says :  "  If  the 
remedy  is  a  part  of  the  obligation  of  a  contract,  a  clearer  case  of  impairment  can 
hardly  occur  than  is  presented  in  the  record  before  us.  The  effect  of  the  act  in  ques- 
tion, under  the  circumstances  of  this  judgment,  does  not,  indeed,  merely  impair,  it 
annihilates  the  remedy.  There  is  none  left  " — (p.  623).  Again :  "  The  legal  remedies 
for  the  enforcement  of  a  contract,  which  belong  to  it  at  the  time  and  place  where  it 
is  made,  are  a  part  of  its  obligation.  A  State  may  change  them,  provided  the  change 
involve  no  impairment  of  a  substantial  right.  If  the  provision  of  the  Constitution,  or 
the  legislative  act  of  a  State,  fall  within  the  category  last  mentioned,  they  are  to  that 
extent  utterly  void.  The  constitutional  provision  and  statute  here  in  question  are 
clearly  within  that  category,  and  are  therefore  void  " — (p.  623). 

This  decision  plainly  overrules  many  of  the  cases  cited  above  from  the  State 
reports.  See,  per  contra,  Snydorv.  Palmer,  32  Wise.  406,  411 ;  Watson  v.  Railroad  Co. 
47  N.  Y.  157. 

Arrest. — The  right  of  arrest  and  imprisonment  for  debt  may  be  taken  away. 
People  v.  Carpenter,  46  Barb.  619  ;  Maxey  v.  Loyal,  38  Geo.  531,  540. 

Limitation  of  Actions. — The  period  of  limitation  may  be  extended  before  the  right 
of  action  has  become  barred.  Billings  v.  Hall,  7  Cal.  1 ;  Holcomb  v.  Tracy,  2  Minn. 
241 ;  Cook  v.  Kendall,  13  Minn.  324;  Pleasants  v.  Rohrer,  17  Wise.  577;  Edwards  v. 
McCaddon,  20  Iowa,  520.  But  not  after  the  right  of  action  has  become  barred. 
Sprecker  v.  Wakeley,  11  Wise.  432;  Hill  v.  Kricke,  II.  442;  Parish  v.  Eager,  15 
Wise.  532 ;  see  also  Ball  v.  Wyeth,  99  Mass.  338 ;  per  contra,  see  Swickard  v.  Bailey, 
3  Kans.  507 ;  Page  v.  Mathews,  40  Ala.  547 ;  Cassity  v.  Storms,  1  Bush,  452 ;  Bender 
v.  Crawford,  33  Tex.  745.  The  period  may  be  shortened  provided  a  reasonable 
time  is  allowed.  Smith  v.  Packard,  12  Wise.  371  (nine  months  held  reasonable) ; 
Howell  v.  Howell,  15  Wise.  55;  Osborn  v.  Jaines,  17  Wise.  573;  Auld  v.  Butcher,  2 
Kans.  135  ;  State  v.  Jones,  21  Md.  432 ;  Stephens  v.  St.  Louis  &c.  B'k,  43  Mo.  385  ; 
Adamson  v.  Davis,  47  Mo.  268 ;  Kenyon  v.  Stewart,  44  Penn.  St.  179 ;  Korn  v. 
Browne,  64  Penn.  St.  55 ;  O'Bannon  v.  Louisville  &c.  R.  R.  8  Bush,  348  (six  months 
held  reasonable) ;  see  Morgan  v.  Reed,  2  Head  (Tenn.)  276 ;  Johnson  v.  Bond,  1 
Hempptead,  533.  Thirty  days  was  held  too  short  a  time,  in  Berry  v.  Ransdall,  4 
Mete.  (Ky.)  292.  See  Sohu  v.  Waterson,  17  Wai.  596,  599. 

It  seems  that  the  time  elapsing  between  the  passage  of  the  statute  and  its  taking 
effect  will  be  considered  as  part  of  the  time  of  limitation.  Smith  v.  Morrison,  22 
Pick.  430  ;  Lockhart  v.  Yeiser,  2  Bush,  231 ;  Stine  v. "Bennett,  13  Minn.  153  ;  per  contra, 
see  Price  v.  Hopkin,  13  Mich.  318. 

Where  a  State  land  lottery  was  drawn,  and  there  was  no  limitation  as  to  the  time 
within  which  the  grant  should  be  taken  out,  it  was  held  that  the  Legislature  might 
afterwards  establish  such  limit.  McKenny  v.  Compton,  18  Geo.  170. 

For  a  case  where  a  short  statute  of  limitations  in  a  certain  class  of  cases,  viz., 
actions  to  recover  property  sold  under  judicial  sales  void  for  want  of  proper  parties, 
was  held  unconstitutional  as  a  "  partial "  law,  see  Morgan  v.  Reed,  2  Head  (Tenn.)  276. 


614  BANKRUPT   LAWS. 

It  appears  then  to  have  been  decided  by  the  Supreme  Court 
of  the  United  States,  that  the  power  of  Congress  to  pass  a 

Recording  Acts. — Acts  requiring  instruments  to  be  recorded,  and  giving  priority 
to  a  recorded  deed,  have  been  held  valid  in  their  application  to  past  contracts. 
Stafford  v.  Lick,  7  Cal.  479.  Also  an  act  requiring  claims  of  homestead  to  be  re- 
corded on  pain  of  forfeiture.  Noble  v.  Hook,  24  Cal,  638.  But  a  statute  declaring 
that  certain  classes  of  debts  shall  be  barred  if  not  registered  within  a  certain  time, 
was  held  void.  Robinson  v.  Magee,  9  Cal.  81. 

Methods  and  Instruments  of  Administering  Justice. — It  is  necessary  that  the  Legis- 
lature should,  for  the  public  good,  have  power  to  alter  from  time  to  time  the  laws 
regulating  courts,  pleadings,  forms  of  action,  parties,  practice,  and  evidence,  within 
reasonable  limits,  and  such  changes  do  not  impair  the  obligation  of  the  contracts 
which  they  may  affect. 

Courts. — A  law  abolishing  an  existing  court,  and  thereby  delaying  remedies  on 
contracts,  is  valid,  provided  a  substantial  remedy  is  left.  Newkirk  v.  Chapron,  17 
111.  344.  As  to  costs,  see  Rader  v.  Road-Dist.  7  Vroom,  273. 

Pleadings. — A  statute  allowing  defence  of  want  of  consideration  to  be  set  up  in 
action  on  a  sealed  instrument  is  valid.  Williams  v.  Haines,  27  Iowa,  251 ;  Rich  v. 
Flanders,  39  K  H.  304.  So  of  change  of  form  of  affidavit  to  stay  proceedings  to 
oust  tenant.  Lockett  v.  Usry,  38  Geo.  345. 

Forms  of  Action  or  Proceeding. — A  statute  taking  away  scire  facia*  and  leaving 
creditor  to  his  common  law  remedy  on  his  judgment  is  valid.  Parker  v.  Shannon- 
house,  Phil.  (N.  C.)  Law,  209.  The  remedy  against  stockholders  of  an  insolvent  cor- 
poration may  be  changed  from  bill  in  equity  to  an  assessment  by  receivers.  Com- 
monwealth v.  Cochituate  B'k,  3  Allen,  42 ;  Story  v.  Furman,  25  N.  Y.  214.  And  an 
act  forbidding  suit  after  the  appointment  of  a  receiver  is  valid.  Leathers  v.  Ship- 
builders' B'k,  40  Me.  386. 

The  Legislature  may  take  away  a  particular  common-law  remedy,  if  another 
efficient  remedy  remains — e.  g.,  may  abolish  distress  for  rent,  leaving  the  landlord 
to  his  action.  'Van  Rensselaer  v.  Snyder,  9  Barb.  302;  13  N.  Y.  299;  Guild  v. 
Rogers,  8  Barb.  502.  And  this  even  though  the  parties  have  stipulated  for  dis- 
tress in  their  lease.  Conkey  v.  Hart,  14  K  Y.  22  ;  see  Billmeyer  v.  Evans,  40  Penn. 
St.  324. 

Parties  to  Sue  or  to  le  Sued. — A  statute  subjecting  a  mortgagee  who  takes  posses- 
sion after  its  passage  to  a  personal  suit  for  taxes  was  held  valid,  such  taxes  always 
having  been  a  lien  on  the  lands,  and  it  being  merely  a  change  of  remedy.  Andrews 
v.  Worcester  &c.  Ins.  Co.  5  Allen,  65.  An  equitable  owner  may  be  empowered  to 
sue  in  his  own  name.  Van  Rensselaer  v.  Hayes,  19  N.  Y.  68.  And  such  provision 
may  be  again  revoked  provided  adequate  remedy  be  left.  Van  Rensselaer  v.  Reed,  26 
N.  Y.  558.  The  right  o£  action  may  be  restricted  to  the  real  party  in  interest.  Han- 
cock v.  Ritchie,  11  Ind.  48.  But  an  act  allowing  equities  to  be  set  up  against  the 
Iwnafide  holder  for  value  before  maturity  of  negotiable  paper  would  be  invalid. 
Cornell  v.  Hichens,  11  Wise.  353;  and  see  Philbrick  v.  Philbrick,  39  K  H.  468. 

Practice.— An  act.  extending  the  privilege  of  new  trial  to  cases  where  it  did  not 
before  exist  is  valid.  Johnson  v.  Semple,  31  Iowa,  49. 

Evidence. — Reasonable  changes  may  be  made  in  the  law  of  evidence,  and  applied 
to  existing  causes  of  action.  Cowan  v.  McCutchen,  43  Miss.  207 ;  Neass  v.  Mercer, 
15  Barb.  318.  For  example,  parties  may  be  made  witnesses.  Little  v.  Gibson,  39  N. 


BANKRUPT    LAWS.  615 

bankrupt  law  is  not  exclusive ;  that  the  exercise  of  that  power 
by  the  States,  as  to  future  contracts,  does  not  impair  their  ob- 

H.  505 ;  Rich  v.  Flanders,  Ib.  304.  And  a  statute  is  valid  providing  that  no  action 
shall  be  maintained  on  a  new  promise  of  a  bankrupt  not  in  writing.  Kingley  v. 
Cousins,  47  Me.  91 ;  per  contra,  Saunders  v.  Carroll,  14  La.  Ann.  27.  And  also  a 
statute  to  the  effect  that  part  payment  shall  not  be  an  admission  of  debt.  Parsons 
v.  Carey,  28  Iowa,  431.  But  it  seems  that  an  act  prohibiting  parol  evidence  of 
leases  would  be  void  as  applied  to  past  contracts.  McDonald  v.  Steward,  18  La. 
Ann.  90. 

A  statute  providing  that  a  tax  deed  shall  be  prima  facie  evidence  only  of  the 
regularity  of  the  proceedings,  when,  by  the  law  at  the  time  of  the  sale,  it  was  con- 
clusive evidence,  has  been  held  unconstitutional  in  its  application  to  existing  deeds. 
Smith  v.  Cleveland,  17  Wise.  556  ;  Nelson  v.  Rountree,  23  Wise.  367.  The  Legisla- 
ture may,  however,  prescribe  the  form  of  deed  to  be  given,  even  under  past  sales, 
provided  it  does  not  impair  the  effect  of  the  deed.  Lain  v.  Shepardson,  18  Wise. 
59.  But  cannot  annex  new  conditions  to  the  issuing  of  the  deed  when  the  right  to 
it  has  become  vested,  Knox  v.  Hundhausen,  23  Wise.  508,  unless  a  reasonable  time  is 
allowed  within  which  the  deed  can  be  obtained  on  the  old  terms.  Knox  v.  Hund- 
hausen, 24  Wise.  196;  Kearns  v.  McCarville,  24  Wise.  457;  Curtis  v.  Morrow,  24 
Wise.  664. 

A  law  requiring  the  holder  of  a  tax  certificate  to  notify  any  occupant  of  the  land 
before  taking  out  a  tax  deed  is  valid .  Curtis  v.  Whitney,  13  Wai.  68. 

Scaling  Laws. — Laws  have  been  passed  in  most  of  the  Southern  States  intended 
to  relieve  parties  from  having  to  pay  in  United  States  currency  sums  based  on  Con- 
federate currency,  and  these  laws  have  generally  been  held  valid.  Their  most  usual 
form  is,  perhaps,  to  allow  it  to  be  shown  that  Confederate  currency  was  intended  by 
the  parties  in  making  the  contract,  and  what  is  the  value  of  that  currency  in  United 
States  currency.  Thorington  v.  Smith,  8  Wai.  1 ;  Slaughter  v.  Culpepper,  35  Geo. 
25  ;  Herbert  v.  Easton,  43  Ala.  547  ;  Woodpin  v.  Sluder,  1  Phil.  (N.  C.)  L.  200 ;  Neeley 
v.  McFadden,  2  Rich.  N.  S.  169  ;  Harmon  v.  Wallace,  II,  208  ;  see  also  Kirtland  v. 
Molton,  41  Ala.  548;  Rutland  v.  Copes,  15  Rich.  Law,  84  ;  Pharis  v.  Dice,  21  Gratt. 
303.  A  statute  allowing  the  value  of  the  property  sold  to  be  considered,  irrespective 
of  the  currency  agreed  to  be  paid  for  the  same,  has  been  held  valid.  King  v.  W.  & 
W.  R.  R.  66  N.  C.  277.  And  a  statute  allowing  juries  to  reduce  debts  according  to 
the  equities  of  the  case,  &c.  Cutts  v.  Hardee,  38  Geo.  350  ;  but,  per  contra,  Leach  v. 
Smith,  25  Ark.  246;  Woodruff  v.  Tilley,  II.  309. 

But  an  act  allowing  set-off  of  losses  during  the  war  would  be  unconstitutional. 
Gunn  v.  Hendry,  43  Geo.  556 ;  Solomon  v.  Lowry,  44  Geo.  290.  And  so  of  an  act 
allowing  a  return  of  the  property  sold  in  full  satisfaction.  Abercrombie  v.  Baxter 
44  Geo.  36. 

Redemption  Laws. — The  Supreme  Court  of  the  United  States,  in  the  cases  cited  in 
the  text,  has  established  the  doctrine  that  such  statutes  giving  mortgagors  and 
owners  and  judgment  debtors  additional  and  new  powers  and  opportunities  for  re- 
deeming the  property  sold  on  foreclosure  or  execution,  are  void  in  their  application 
to  existing  contracts ;  they  interfere  with  and  hamper  the  essential  remedy  by  which 
the  contract  is  made  obligatory,  and  they  thus  impair  the  obligation  of  the  contract. 
Many  State  courts  have  acquiesced  in  this  doctrine.  Others,  however,  have  either 
rejected  or  evaded  it. 


616  BANKRUPT   LAWS. 

ligation ;  that  a  contract  made  and  'to  "be  performed  in  one  State 
is  not,  as  against  a  citizen  of  that  State,  discharged  by  a  cer- 

The  following  cases  hold  such  laws  invalid  as  to  existing  contracts  :  Thorue  v. 
San  Francisco,  4  Cal.  127;  Scobey  v.  Gibson,  17  Ind.  572;  Iglehart  v.  Wolfin,  20  Ind. 
32;  Greenfield  v.  Dorris,  1  Sneed  (Tenn.)  548;  Maloney  v.  Fortune,  14  Iowa,  417- 
Oatman  v.  Bond,  15  Wise.  20  ;  Robinson  y.  Howe,  13  Wise.  341  ;  Goenen  v.  Schroederr 
8  Minn.  387.  A  statute  which  lessens  the  time  for  redemption  after  foreclosure  sale 
was  held  void,  in  Cargill  v.  Power,  1  Mich.  369.  But  was  held  valid  in  Butler  v. 
Palmer,  1  Hill,  324 ;  Robinson  v.  Howe,  13  Wise.  341,  346 ;  Smith  v.  Packard,  12  Wise. 
371.  See,  per  contra,  Ashuelet  R.  R.  v.  Elliott,  52  N.  H.  387. 

it  was  held,  in  Pennsylvania,  that  a  law  extending  the  time  of  redemption  from 
execution  sale,  passed  after  a  sale  but  before  the  deed  was  given,  was  valid  in  its 
application  to  such  sales.  Gault's  Appeal,  33  Penn.  St.  94 ;  per  contra,  see  Robinson 
v.  Howe,  13  Wise.  341  (a  tax  sale) ;  see  Tuolumne  &c.  Co.  v.  Sedgwick,  15  Cal. 
515. 

In  some  cases  the  right  to  extend  the  time  of  redemption  has  been  asserted  as  to 
sales  made  under  decree  of  court,  distinguishing  such  sales  from  those  made  under 
a  power  in  the  mortgage.  Stone  v.  Bassett,  4  Minn.  298 ;  Heyward  v.  Judd,  4 
Minn.  483. 

A  statute  allowing  a  mortgagor  six  months  instead  of  twenty  days  in  which  to 
answer,  was  held  valid.  Von  Baumbach  v.  Bade,  9  Wise.  559 ;  Starkweather  v.. 
Hawes,  10  Wise.  125. 

And  a  statute  permitting  the  mortgagor  to  retain  possession  until  the  end  of  the 
time  allowed  for  redemption  was  sustained  in  Berthold  v.  Holman,  12  Minn.  335; 
Berthold  v.  Fox,  13  Minn.  501.  But  a  similar  statute  was  declared  void  in  Black- 
wood  v.  Vanvleet,  11  Mich.  252;  Mundy  v.  Monroe,  1  Mich.  68,  76. 

It  seems  a  statute  requiring  the  mortgagee  to  exhaust  the  mortgage  security  be- 
fore suing  on  the  note  would"  be  valid  ;  but  a  statute  that  by  suing  the  note  he  should 
forfeit  the  mortgage  would  not.  Swift  v.  Fletcher,  6  Minn.  550. 

Appraisement  Laws. — Statutes  providing  that  property  shall  not  be  sold  on  exe- 
cution for  less  than  its  appraised  value,  or  some  fixed  portion  of  that  value,  are  void 
in  their  application  to  prior  contracts.  Rawley  v.  Hooker,  21  Ind.  144. 

Miscellaneous  Cases  of  Statutes  affecting  the  Remedy. — To  take  away  all  remedy 
impairs  the  obligation.  Penrose  v.  Erie  Canal  Co.  56  Penn.  St.  46 ;  and  see  many  of 
the  cases  above  cited.  In  Jackoway  v.  Denton,  25  Ark.  625,  and  McNealy  v.  Gregory, 
13  Flor.417,  a  clause  of  the  State  Constitution  was  pronounced  void  which  declared 
that  all  past  contracts  for  the  purchase  or  sale  of  slaves  were  nullities.  So  a  statute 
which  does  not  leave  a  person  a  substantial  remedy,  as  it  existed  when  the  contract 
was  entered  into,  but  clogs  and  hampers  it,  is  invalid.  Oatman  v.  Bond,  15  Wise. 
20.  An  act  which  reduces  the  time  of  publishing  notice  of  sale  in  foreclosure,  by 
advertisement  under  a  power,  from  twenty-four  weeks  to  twelve  weeks,  affects  the 
procedure  only  and  is  valid.  James  v.  Stull,  9  Barb.  482. 

Acts  providing  that  a  judgment  shall  not  be  a  lien  have  been  held  valid.  New 
Orleans  v.  Holmes,  13  La.  Ann.  502;  Curry  v.  Landers,  35  Ala.  280  ;  but  see  Tillotson 
v.  Millard,  7  Minn.  513. 

A  statute  releasing  the  individual  liability  of  stockholders  in  corporations  was 
sustained  in  Maine,  in  its  application  to  existing  corporations.  Coffin  v.  Rich,  45  Me. 
507.  But  this  decision  was  overruled,  and  the  same  statute  pronounced  void,  so  far 


BANKRUPT   LAWS.  617 

tificate  obtained  under  the  laws  of  another  State,  though  such 
laws  were  passed  before  the  inception  of  the  contract ;  that  a 

as  it  applied  to  existing  corporations,  by  the  U.  S.  Supreme  Court,  in  Hawthorne  v. 
Calef,  2  Wai.  10. 

For  a  case  sustaining  a  statute  changing  the  mode  of  notifying  indorsers,  see 
Levering  v:  Washington,  3  Minn.  323.  And  as  to  levy  of  executions,  see  Grosvenor 
v.  Chesley,  48  Me.  369  ;  and  see  Sanders  v.  Hillsborough  Ins.  Co.  44  N.  H.  238. 

Changing,  Improving,  or  Amplifying  the  Remedy. — Laws  giving  more  efficacious 
remedies,  or  improving  existing  ones,  or  adding  new  ones,  or  removing  disabilities 
or  penalties,  do  not  impair  the  obligation  of  contracts.  The  following  are  illustra- 
tions: Gowen  v.  Penobscot  R.  R.  44  Me.  140  (new  means  of  enforcing  land  damages) ; 
Portland  &c.  R.  R.  v.  Grand  Trunk  R.  R.  46  Me.  69  (commissioners  to  determine 
rights  of  connecting  roads) ;  Coosa  R.  St.  B.  Co.  v.  Barclay,  30  Ala.  120  (right  of 
attachment  against  foreign  corporation) ;  New  Albany  &c.  R.  R.  v.  McNamara,  11 
Ind.  543  (new  method  of  service  of  process) ;  Webb  v.  Moore,  25  Ind.  4  (shortening 
notice  in  foreclosure  sales). 

The  Legislature  may  impose  individual  liability  upon  stockholders  as  to  all 
future  contracts.  Coffin  v.  Rich,  45  Me.  507 ;  Matter  of  Reciprocity  B'k,  29  Barb. 
369;  sect  qu.  the  case  in  New  York,  being  under  a  power  reserved  to  alter  charters  - 
and  see  Ireland  v.  Palestine  &c.  Co.  19  Ohio,  N.  S.  369.  And  the  Legislature  may 
increase  the  efficacy  of  the  remedy  against  stockholders  liable  for  past  indebtedness. 
Smith  v.  Bryan,  34  111.  364. 

A  statute  giving  new  remedies  for  breach  of  an  administrator's  bond  is  valid  r 
even  as  against  the  sureties.  Graham  v.  State,  7  Ind.  470.  And  one  making  it  a 
criminal  offence  for  a  person  who  has  contracted  to  keep  a  bridge  in  repair  to 
neglect  to  do  so.  Blaun  v.  State,  39  Ala.  353.  This  last  case  must  be  confined  to 
future  neglects ;  if  it  applied  to  past  neglects,  it  would  be  an  ex  post  facto  law  and! 
void. 

An  equitable  remedy  may  be  changed  to  a  legal  one,  and  an  assignee  of  a  rent- 
charge  enabled  to  sell  in  his  own  name.  Van  Rengselaer  v.  Hayes,  19  N.  Y.  68 ;  Same 
v.  Ball,  II,  100;  so  the  assignee  of  coupons,  Augusta  B'k  v.  Augusta,  49  Me.  507;  so 
a  sub-contractor,  Peters  v.  St.  Louis  &c.  R.  R.  23  Mo.  107 ;  Grannahan  v.  Hannibal  &c. 
R.  R.  30  Mo.  546  ;  so  of  day  laborers  employed  by  sub-contractors,  Branin  v.  C.  & 
P.  Riv.  R.  R.  31  Vt.  214. 

A  law  giving  a  lien  to  mechanics,  &c.,  is  not  objectionable  as  impairing  the  ob- 
ligation of  contracts.  Gordon  v.  South  Fork  &c.  Co.  1  McAll.  C.  C.  (Cal.)  513 ;  Miller 
v.  Moore,  1  E.  D.  Smith,  739 ;  but  see  Kinney  v.  Sherman,  28  HI.  520.  Though  it 
may  be  objectionable  as  creating  an  obligation  or  lien  where  none  existed  before,  and 
as  thus  taking  property  without  "  due  process  of  law." 

That  a  remedy  for  breach  of  warranty  cannot  be  given  prior  to  eviction,  see  Great 
Western  &c.  Co.  v.  Saas,  1  Cinn.  Supr.  Ct.  R.  21.  A  statute  taking  away  the 
disability  of  a  married  woman  to  convey  land  is  valid.  Jones'  Appeal,  57  Penn.  St. 
369. 

Laws  validating  contracts  are  not  objectionable  as  impairing  the  obligation. 
Sparks  v.  Claffer,  30  Ind.  204 ;  Welch  v.  Wadsworth,  30  Conn.  149 ;  Thornton  v. 
McGrath,  1  Duv.  (Ky.)  349 ;  and  see  People  v.  Mitchell,  45  Barb.  208,  Such  laws, 
however,  might  be  obnoxious  to  other  constitutional  provisions — e.  ^.,'that  requiring 
due  process  of  law. 


618  BANKRUPT   LAWS. 

discharge  under  the  laws  of  the  State  where  the  contract  was 
made,  but  not  to  be  performed,  could  not  be  pleaded  in  bar  in 

Statutes  affecting  Municipal  Corporations. — See  ante  in  this  note,  under  the  head 
"  Municipal  Corporations."  An  act  providing  that  the  amount  of  all  judgments 
against  a  municipality  should  be  included  in  the  tax  levy  of  the  next  year,  and  that 
DO  execution  should  issue  until  the  money  to  pay  such  judgments  should  be  so  raised, 
was  held  void  as  to  past  contracts.  Hadfield  v.  Mayor  &c.  of  N.  Y.  6  Robt.  501 ;  see 
also  Smith  v.  Mayor  &c.  7  Robt.  190 ;  McCauley  v.  Brooks,  16  Cal.  11 ;  but  see  Dodd  v. 
Miller,  14  Ind.  433 ;  Swann  v.  Buck,  40  Miss.  268.  A  statute  prohibiting  a  city  from 
levying  taxes  to  pay  judgments  against  it,  was  held  void,  in  South  v.  Madison,  15 
Wise.  30.  Requiring  a  certain  amount  of  the  revenue  of  the  year  to  be  set  apart  is 
not  objectionable,  unless  it  appears  that  payment  of  warrants  drawn  must  be  de- 
layed thereby.  Humbolt  Co.  v.  Churchill  Co.  Comm'rs,  6  Nev.  30. 

A  law  compelling  funding  of  claims  at  a  lower  rate  of  interest  is  unconstitutional. 
Brewer  v.  Otoe  Co.  1  Neb.  373.  But  changes  may  be  made  in  funding  laws,  pro- 
vided the  rights  of  creditors  are  not  injuriously  affected.  Thornton  v.  Hooper,  14 
Cal.  9  ;  Babcock  v.  Middleton,  20  Cal.  643. 

The  fact  that  one  of  the  contracting  parties  is  a  municipality  does  not  give  the 
Legislature  power  to  take  away  the  rights  or  remedies  of  the  other  party.  Thus,  a 
statute  creating  a  commission  for  examining  into  the  legality  of  all  outstanding 
claims  against  a  county,  and  funding  such  as  are  found  legal,  and  providing  that  no 
claim  not  presented  to  and  allowed  by  such  commissioners  shall  be  a  legal  and  valid 
claim  against  the  county,  is  void  so  far  as  this  last  provision  is  concerned.  Rose  v. 
Estudillo,  39  Cal.  270.  And  an  act  providing  that  no  judgment  shall  be  had  against 
the  city  of  New  York,  unless  on  proof  that  the  amount  is  in  the  treasury  unexpended 
to  the  credit  of  the  appropriation  for  the  specific  object  or  purpose  for  which  the 
contract  was  made,  is  void  as  to  past  services  and  prior  contracts.  Smith  v.  Mayor 
<fcc.  7  Robt.  190. 

The  Supreme  Court  of  the  United  States  has  held,  in  a  long  series  of  cases,  that 
where  municipal  corporations  have  created  indebtedness — e.  g.,  issued  bonds  under 
color  of  legislative  authority,  which  were  valid  according  to  the  judicial  decisions 
of  the  State  at  the  time — any  subsequent  legislation  affecting  the  contracts  or  the 
remedy  upon  them,  and  any  subsequent  judicial  decisions  of  the  State  courts  putting 
a  different  construction  upon  the  State  Constitution  or  statutes,  by  which  the  con- 
tracts would  be  rendered  illegal,  impair  the  obligation  of  the  contracts,  and  are 
void  ;  and  the  United  States  courts  will  enforce  such  bonds  against  the  municipali- 
ties by  action,  or  by  mandamus,  or  by  receiver,  notwithstanding  State  statutes  which 
forbid  the  municipality  to  pay  the  debts  or  to  levy  taxes  for  the  purpose  of  paying, 
and  notwithstanding  the  municipal  authorities'  refuse  to  levy  such  taxes.  Gelpkev. 
Dubuque,  1  Wai.  175;  Havemeyer  v.  Iowa  Co.  3  Ib.  294 ;  Thompson  v.  Lee  Co.  Ib. 
327 ;  Mitchell  v.  Burlington,  4  Ib.  270 ;  Butz  v.  Muscatine,  8  Ib.  575  ;  Van  Hoffman 
v.  Quincy,  4  II.  535 ;  Chicago  v.  Sheldon,  9  Ib.  50 ;  City  v.  Lamson,  Ib.  477.  In 
one  case,  when  the  municipal  authorities  not  only  refused  to  levy  the  tax,  but  all  re- 
signed, and  the  municipality  was  without  officers,  the  U.  S.  Circuit  Court  held  that 
it  could  appoint  an  officer  of  the  court  in  the  nature  of  a  receiver  to  perform  the 
duties  of  the  municipal  authorities,  and  levy  and  collect  the  tax.  Welch  v.  Ste. 
Oenevieve,  1  Dillon,  C.  C.  130. 

Laws  incidentally  affecting  Contracts. — As  a  general  proposition  statutes  cannot 


BANKRUPT  LAWS.  619 

the  Circuit  Court  of  the  United  States  against  a  creditor,  a 
citizen  of  another  State  at  the  time  of  the  origin  of  the  con- 
tract and  of  the  discharge ;  that  the  same  is  true  when  the 

"be  objected  to  because  they  incidentally  and  remotely  affect  contract  rights,  they 
being  passed  diverse  inluitu,  and  being  necessary  for  the  general  public  welfare.  See 
ante  in  these  notes,  upon  "  Obligation  of  Contracts,"  under  head  of  "Police  Power," 
"  Taxation,"  and  "Eminent  Domain,"  in  their  effects  upon  contracts.  The  following 
points  and  cases  are  added :  A  statute  authorizing  a  city  to  take  land  for  public  im- 
provements applies  to  a  case  where  the  city  itself  had  sold  the  land  with  warranty. 
Brimmer  v.  Boston,  102  Mass.  19.  A  charter  having  contained  leave  to  set  up  a 
lottery,  a  subsequent  statute  making  lotteries  illegal  passed  diverso  intuitu  was  held 
valid  as  against  such  charter.  Miss.  Soc.  of  Arts  v.  Musgrove,  44  Miss.  820.  An  act 
annexing  part  of  a  county  to  a  city  does  not  impair  obligation  of  contracts  of  the 
county  creditors.  Wade  v.  Richmond,  18  Gratt.  583.  An  act  prohibiting  action  on 
contracts  made  outside  of  the  State  in  fraud  of  its  laws  is  valid.  Davis  v.  Bronson, 
6  Clarke  (la.)  410.  As  to  the  effect  upon  a  chartered  bank  of  a  statute  restricting 
the  negotiation  of  notes,  see  Mclntyre  v.  Ingraham,  35  Miss.  25. 

Courts,  however,  are  inclined  to  restrain  the  Legislature  in  its  exercise  of  general 
powers,  even  in  matters  of  public  concern,  so  far  as  such  exercise  may  encroach  upon 
private  rights  of  contract.  Thus,  where  under  a  mortgage  of  a  railroad  to  trustees 
to  secure  bonds,  the  trustees  were  in  possession,  and  the  mortgage  contained  adequate 
provision  for  the  appointment,  when  necessary,  of 'successors  in  the  trust,  an  act  pro- 
viding for  an  annual  election  of  trustees  by  the  bondholders  was  held  invalid. 
Fletcher  v.  Rutland  &c.  R.  R.  39  Vt.  633.  The  same  was  held  of  an  act  authorizing 
land  dedicated  by  the  owner  for  a  public  square  to  be  used  for  a  different  purpose, 
Warren  v.  Lyons  City,  22  Iowa,  351.  As  to  power  of  the  Legislature  to  authorize 
the  sale  of  lands  devised  in  charity,  although  alienation  is  prohibited  by  the.  terms 
of  the  devise,  and  to  change  the  object  of  the  charity,  see  Att'y  Gen.  v.  The  Clergy 
Soc.  10  Rich.  Eq.  604 ;  Burton's  Appeal,  57  Penn.  St.  213.  A  statute  authorizing 
debts  to  a  mother  bank  to  be  paid  to  its  branches,  and  vice  versa,  was  held  unconstitu- 
tional, in  Bank  of  Old  Dominion  v.  McVeigh,  20  Gratt.  457.  Also  a  statute  exempt- 
ing the  property  of  a  particular  corporation  from  sequestration  unless  mismanagement, 
&c.,  were  shown.  Penrose  v.  Erie  Canal  Co.  56  Penn.  St.  46. 

That  consolidation  of  two  colleges  does  not  impair  the  obligation  of  scholarships 
sold  in  one  of  them,  see  Huston  v.  College,  63  Penn.  St.  428.  As  to  consolidation  of 
railroads,  see  McCray  v.  Junction  R.  R.  9  Ind.  358. 

The  fact  that  a  question  of  public  policy  is  involved  does  not  make  it  constitu- 
tional to  take  away  rights  secured  by  contract.  Thus,  provisions,  whether  contained 
in  statutes  or  in  Constitutions,  making  void  past  contracts  for  slaves  entered  into 
before  slavery  was  abolished,  or  prohibiting  courts  from  entertaining  suits  thereon, 
are  invalid.  Pillow  v.  Brown,  26  Ark.  240':  McElvain  v.  Mudd,  44  Ala.  48  ;  Calhoun 
v.  Calhoun,  2  Rich.  N.  S.  283 ;  White  v.  Hart,  13  W  al.  646.  And  contracts  in  which 
the  consideration  was  Confederate  money  cannot  be  declared  void  on  that  account. 
Thorington  v.  Smith,  8  Wai.  1.  But  the  contrary  was  held  in  Hale  v.  Huston,  44 
Ala.  134.  An  amnesty  act  is  unconstitutional  if  it  takes  away  contract  rights.  State 
v.  Gatzweiler,  49  Mo.  17;  Clark  v.  Ticknor,  49  Mo.  144;  see  Drehman  v.  Stifle,  8 
Wai.  595.  And  an  act  allowing  set-off  of  losses  during  the  war.  Gunn  v.  Hendry, 
43  Geo.  557;  Solomon  v.  Lowry,  44  Geo.  290.  And  an  act  allowing  defendant  to 


620  BANKRUPT   LAWS. 

action  is  brought  in  the  courts  of  a  State  other  than  that  of  the 
origin  of  the  contract ;  that  a  creditor  of  one  State,  who  volun. 

return  property  purchased  in  full  satisfaction  of  the  contract.    Abercrombie  v.  Baxter, 
44  Geo.  36. 

Who  can  Complain. — That  only  parties  whose  rights  are  invaded  can  complain, 
see  New  Orleans  Nav.  Co.  v.  New  Orleans,  12  La.  Ann.  364,  and  Mobile  &c.  R.  R.  v. 
State,  29  Ala.  573,  where  it  was  held  that  creditors  could  not  complain  of  the  for- 
feiture of  a  charter  consented  to  by  the  corporation.  It  seems  individual  stock- 
holders may  complain  of  infringement  of  the  contract  contained  in  the  charter  of  a 
corporation.  Gilford  v.  New  Jersey  R.  R.  2  Stockt.  171.  But  where  a  municipality 
subscribes  to  the  stock  of  a  corporation  under  legislative  sanction,  the  individual 
corporators  have  no  right  to  complain  of  a  statute  authorizing  a  withdrawal  of  the 
subscription.  People  v.  Coon,  25  Cal.  635.  Where  the  charter  of  a  turnpike  cor- 
poration provided  that  certain  towns  should  not  be  compelled  to  support  any  part 
of  the  road,  is  was  held  that  the  towns  had  no  constitutional  right  to  the  continuance 
of  the  exemption.  Brighton  v.  Wilkinson,  2  Allen,  27. 

Extent  of  the  Legislative  Power  where  the  Bight  to  amend,  alter,  or  repeal  Charters, 
<&c.,  is  reserved  either  in  the  Charter  or  in  some  general  Statute. — It  would  seem  that 
the  right  of  alteration  or  repeal  cannot  be  reserved  in  such  terms  as  to  leave  the 
rights  of  corporators,  or  those  with  whom  they  contract,  wholly  at  the  mercy  of  the 
legislative  will.  See  Goener  v.  Schroeder,  8  Minn.  387. 

It  is  difficult  under  the  authorities  to  determine  how  far,  under  the  reservation 
usually  made,  the  legislative  power  extends.  It  certainly  is  far  broader  than  the 
police  power,  the  taxing  power,  or  the  power  of  eminent  domain.  There  are  cases 
which  hold  that  the  power  of  repeal  and  amendment  enables  the  Legislature  to  dis- 
pose of  the  property  of  all  corporations  to  the  same  extent  as  it  may  dispose  of  the 
property  of  municipal  corporations,  and  to  invalidate  contracts  so  far  as  the  corpo- 
rations are  concerned.  Other  cases,  however,  limit  the  legislative  power  to  measures 
of  change  far  less  radical  than  these.  The  reservation  of  the  right  to  amend  merely 
does  not  enable  the  Legislature  to  repeal,  or  to  defeat  or  substantially  impair,  the 
original  object  of  the  incorporation.  Comm'rs  v.  Holyoke  &c.  Co.  104  Mass.  446, 
451.  See  Mayor  v.Norwich  &c.  R.  R.  109  Mass.  103 ;  Parker  v.  Metropolitan  R.R.  II.  506. 

The  following  cases  are  illustrations  of  what  the  Legislature  has  done  under  the 
reserved  right,  and  it  will  be  seen  that  some  of  them,  go  much  further  than  others. 
A  railroad  may  be  compelled  to  erect  a  station  at  a  particular  place.  Commonwealth 
v.  Eastern  R.  R.  103  Mass.  254 ;  and  to  alter,  grade,  and  build  connecting  tracks, 
Fitchburg  R,  R.  v.  Grand  Junction  R.  R.  4  Allen,  198  ;  and  to  widen  a  bridge,  En- 
glish v.  New  Haven  R.  R.  32  Conn.  240  ;  and  to  construct  the  embankments  neces- 
sary to  carry  a  highway  across  it  at  its  own  expense,  Albany  &c.  R.  R.  v.  Brownell, 
24  N.  Y.  345.  Where  a  statute  has  exempted  a  railroad  corporation  from  a  duty 
imposed  by  law— e.  g.,  ringing  a  bell — such  duty  may  be  reimposed.  Galena  &c.  R. 
R.  v.  Appleby,  28  111.  283. 

But  where  a  corporation  has  been  granted  the  privilege  of  increasing  its  capital 
stock,  in  consideration  that  it  shall  be  liable  for  all  damages  to  fish-rights  caused  by 
its  dams,  and  it  has  paid  large  sums  on  account  of  such  damages,  it  cannot  be  re- 
quired to  make  new  fishways.  Commonwealth  v.  Essex  Co.  13  Gray,  239.  We  think 
this  case  cannot  be  reconciled  with  many  other  decisions,  and  especially  with  two 
recent  ones  made  by  the  United  States  Supreme  Court,  and  cited  below,  and  seo 


BANKRUPT  LAWS.  621 

tarily  makes  himself  a  party  to  insolvent  proceedings  in  another 
State,  is  bound  by  the  result. 

Comin'rs  v.  Holyoke  &c.  Co.  104  Mass.  446.  The  number  of  directors  in  a  railroad 
to  which  a  city  is  entitled  by  virtue  of  its  municipal  subscription  may  be  increased. 
People  v.  Hills,  46  Barb.  340.  This  case  was  reversed  by  the  Court  of  Appeals  upon 
another  point.  A  subsequent  case  involving  the  same  question  was  carried  to  the 
U.  S.  Supreme  Court,  and  the  ruling  in  People  v.  Hills,  46  Barb.  340,  was  there 
affirmed.  It  was  urged,  on  the  argument,  that  the  number  of  directors  was  not  a 
provision  either  of  the  city  or  of  the  railroad  charter,  but  depended  in  fact  upon  a 
contract  between  the  city  and  the  company,  and  that,  while  the  Legislature  might 
alter  the  charter  of  both  corporations,  it  could  not  on  the  plea  of  such  alteration 
change  the  contract  made  between  them.  The  Supreme  Court,  however,  upheld  a 
statute  making  the  change.  Miller  v.  State,  15  Wall.  478.  Bradley  and  Field,  JJ., 
dissented,  and  their  brief  opinion  we  quote :  "  I  dissent  from  the  opinion  of  the 
court  in  this  case,  on  the  ground  that  the  agreement  with  respect  to  the  number  of 
directors  which  the  city  of  Rochester  should  elect  was  not  a  part  of  the  charter  of 
the  company,  but  an  agreement  outside  of  and  collateral  to  it.  Whilst  the  Legisla- 
ture may  reserve  the  right  to  revoke  or  change  its  own  grant  of  chartered  rights,  it 
:  cannot  reserve  a  right  to  invalidate  contracts  between  third  parties ;  as  that  would 
enable  it  to  reserve  the  right  to  impair  the  validity  of  all  contracts,  and  thus  evade 
the  inhibition  of  the  Constitution  of  the  United  States."  Hid.  499.  By  a  general 
statute  of  South  Carolina  the  right  to  alter,  amend,  or  repeal  charters  subsequently 
granted  is  reserved,  unless  the  charter,  in  express  terms,  is  excepted  therefrom.  A 
railroad  was  chartered  under  this  statute.  Subsequently  an  act  was  passed  exempt- 
ing this  railroad  from  all  taxation,  but  this  act  did  not  in  any  manner  state  that  it 
was  excepted  from  the  operation  of  the  prior  general  law  referred  to.  Finally,  in 
1868,  a  new  State  Constitution,  and  legislation  under  it,  reimposed  taxes  upon  the 
railroad.  The  Supreme  Court  of  the  United  States  held  this  last  legislative  act  to 
be  constitutional  and  valid.  Tomlinson  v.  Jessup,  15  Wall.  454.  In  Holyoke  Co.  v. 
Lyman,  15  Wall.  500,  the  case  of  Comm'rs  v.  Holyoke  Co.  104  Mass.  446,  is  affirmed, 
and,  as  it  seems,  that  of  Commonwealth  v.  Essex  Co.  13  Gray,  239,  is  overruled. 

Again,  the  same  court  held  that  two  colleges  might  be  consolidated,  one  being 
removed  from  its  former  location,  even  though  this  one  had  issued  scholarships 
which  were  contracts  between  the  holders  thereof  and  the  college.  It  was  urged 
in  this  case,  also,  that  the  statute  had  the  effect  to  impair  the  obligation  of  these 
contracts  between  the  college  and  individuals,  but  the  court  held  the  change 
was  within  the  legislative  power.  The  decision,  however,  proceeded  partly  upon 
the  ground  that  the  terms  of  the  scholarships  were  not  directly  invaded,  and  there- 
fore that  the  objection  urged  did  not  exist  in  fact.  Pennsylvania  College  Cases,  13 
Wai.  190.  It  has  been  held  that  the  limits  of  an  exclusive  ferry  privilege  may  be 
narrowed.  Perrin  v.  Oliver,  1  Minn.  202.  Anc1,  in  New  York,  that  the  land  of  a 
railroad  may  be  taken  for  a  public  highway  without  compensation.  Boston  &c.  R. 
R.  v.  Greenbush,  5  Lans.  461.  These  cases,  therefore,  directly  hold  that  under  the 
ordinary  reservation,  the  Legislature  may  take  away  property  belonging  to  the  cor- 
poration, and  alter  contracts  made  by  it,  so  far  at  least  as  its  own  rights  thereunder 
are  concerned. 

A  statute  transferring  the  management  of  a  turnpike  road  to  the  county  court,  on 
account  of  the  neglect  and  misconduct  of  the  directors,  was  held  valid  in  Simpson 


622  BANKRUPT   LAWS. 

The  Supreme  Court  has  not  decided  that  a  contract  which 
is  in  terms  to  be  performed  within  the  State  where  the  dis- 
charge is  granted,  may  not  be  barred  by  such  discharge,  as 
against  a  citizen  of  another  State  seeking  to  enforce  the  contract 
in  the  State  where  the  contract  was  to  be  performed  and  where 
the  discharge  was  obtained.  Nor  has  it  decided  the  question 
where  the  contract  was  made  with  a  citizen  of  the  State  where 
the  discharge  is  granted,  and  of  which  both  creditor  and 
debtor  were  citizens  at  the  time  of  the  proceedings  in  insolv- 
ency, though  the  contract  itself  was  entered  into  in  another 
State.* 

*  I  take  this  clear  and  succinct  statement  nard  v.  Marshall,  8  Pick.  194  ;  Betts  v.  Bag- 

from  a  recent  case  in  Massachusetts  where  ley,   12  Pick.  572;  Agew  v.  Platt,  15  Pick, 

the    whole    subject    has    been    considered.  417;  Savoye  v.  Marsh,  10  Met.  594  ;  Fiske  v. 

Marsh  v.  Putnam,  3  Gray,  563,  per  Thomas,  J.  Foster,   10  Met.  597  ;  Woodbridge  v.  Allen, 

The  other  cases  in  Massachusetts  are — Bray-  12  Met.  470;  Ilsley  v.  Meriam,  7  Gush.  242; 

County  Ct.  v.  Arnold,  7  Bush  (Ky.)  353.  Also  a  statute  authorizing  the  sale  of  the 
franchises  of  a  corporation,  for  purpose  of  paying  its  debts,  by  the  chancellor,  on 
application  of  a  creditor.  L.  &.  O.  Turnpike  v.  Ballard,  2  Mete.  (Ky.)  165.  And  a 
statute  for  the  winding  up  of  insolvent  corporations.  Robinson  v.  Gardiner,  18 
Gratt.  509. 

The  method  of  enforcing  the  liability  of  corporators  may  be  changed.  Hyatt  v. 
McMahon,  25  Barb.  457.  And  personal  liability  may  be  imposed  as  to  all  future 
transactions.  In  re  Oliver  Lee  &  Co.'s  B'k,  21  N.  Y.  9 ;  Sherman  v.  Smith,  1  Blackr 
587.  The  capital  stock  may  be  reduced  with  the  assent  of  a  majority  of  the  stock- 
holders. Joslyn  v.  Pacific  Mail  Co.  12  Abb.  Pr.  R.  (N.  S.)  329.  And  the  business  of 
a  corporation  may  be  extended — e.  g.,  a  railroad  maybe  authorized  to  extend  its  line. 
Durfee  v.  Old  Colony  R.  R.  5  Allen,  230.  See,  on  the  subject  of  altering  the  charter* 
of  banks  organized  under-a  general  banking  law  containing  the  usual  reservation, 
In  re  Oliver  Lee  &  Co.'s  Bank,  tibi  sup.  ;  Sherman  v.  Smith,  1  Black,  587 ;  see  also- 
Iron  City  B'k  v.  Pittsburg,  37  Penn.  St.  340. 

Taxes  may  be  increased  by  general  law  beyond  the  limits  fixed  in  the  charter. 
Commonwealth  v.  Fayette  &c.  R.  R.  55  Penn.  St.  452.  And  where  by  the  charter  of 
a  religious  society,  the  trustees  had  the  right  to  impose  assessments  or  contributions 
only  with  the  consent  of  a  majority  of  the  pewholders,  the  Legislature  may  dispense 
with  such  consent.  Bailey  v.  Power  Street  Church,  6  R.  I.  491. 

Though  the  right  is  reserved  to  the  Legislature,  it  may  be  exercised,  by  the  people 
by  a  change  in  the  Constitution.  In  re  Oliver  Lee  &  Co.'s  Bank,  ubi  sup.  And  where, 
at  the  time  of  granting  the  charter,  a  two-thirds  vote  of  the  Legislature  was  required 
under  the  Constitution,  under  a  new  Constitution  not  containing  such  restriction,  the 
alteration  may  be  made  by  a  majority  vote.  In  re  Reciprocity  Bank,  22  N.  Y.  9. 

Where  the  Constitution  reserves  the  right  to  alter  or  repeal  charters,  provided  no 
injustice  be  done  to  the  corporators,  it  seems  that  the  court  is  to  judge  of  the  justice 
of  the  amending  statute.  Iron  City  Bank  v.  Pittsburg,  37  Penn.  St.  340.  But  in 
this  case  a  tax  law  general  in  its  operation  on  all  banks  was  held  not  to  be 
unjust. 


BANKRUPT  LAWS.  625 

I 

The  most  embarrassing  cases  that  have  arisen,  however, 
under  this  branch  of  our  inquiry,  are  those  growing  out  of  a 
nice  distinction  taken  early  by  very  high  authority  between 
the  obligation  of  a  contract,  and  the  remedy  for  its  infringement 
or  non -performance.  Out  of  this  has  grown  much  discussion 
as  to  the,  extent  to  which  the  legislative  action  of  the  States 
may  alter  the  remedy  without  impairing  the  obligation  of  a 
contract.  In  a  case  already  cited,*  Mr.  Chief  Justice  Marshall 
used  this  language,  "  The  distinction  between  the  obligation  of 
a  contract  and  the  remedy  given  by  the  Legislature  to  enforce 
that  obligation  has  been  taken  at  the  bar,  and  exists  in  the 
nature  of  things.  Without  impairing  the  obligation  of  the 
contract,  the  remedy  may  certainly  be  modified  as  the  wisdom 
of  the  nation  shall  direct.  Confinement  of  the  debtor  may  be 
a  punishment  for  not  performing  his  contract,  or  may  be  allowed 
as  a  means  of  inducing  him  to  perform  it.  But  the  State  may 
refuse  to  inflict  this  punishment,  or  may  withhold  this  means, 
and  leave  the  contract  in  full  force.  Imprisonment  is  no  part 
of  the  contract,  and  simply  to  release  the  prisoner  does  not 
impair  its  obligation."  f  This  very  general  language  has  been 
repeatedly  regretted,  and  often  criticised.  And  certainly  it 
does  not  appear  to  have  been  necessary  for  the  decision  of  the 
cause.J 

Clark  v.  Hatch,  7  Cush.  455;    Scribner  v.  which  by  their  terms  are  to  be  performed  and 

Fisher,  2  Gray,  43.     These  cases  are  all  re-  executed  within  the  limits  of  such  State,  is 

viewed  by  the  Supreme  Court  in  Marsh  v.  valid  and  binding  upon  such  citizens,  and  that 

Putnam,  3  Gray,  551 ;  where  held,  that  a  cer-  a   discharge   obtained   by  a  citizen  of  such 

tificate  of  discharge  under  the  insolvent  laws  State  under  such  a  law  is  a  valid  discharge." 
of  the  State  of  Massachusetts  is  a  bar  to  an  *  Sturges  v.  Crowninshield,  4  Wheat.  200. 
action  on  a  contract  between  two  citizens  of  f  About  the  same  time  the  Supreme  Court 

the  same  State,  though  made  and  to  be  per-  of  the  United  States  held,  that  an  act  incor- 

formed  in  another  State.  porating  a  bank  and  giving  to  the  corporation 

In  Betts  v.  Bagley,   12  Pick.  579,  the  Su-  a  summary  process,  in  the  nature  of  an  at- 

preme    Court   of    Massachusetts   said,   "  We  tachment  against  its  debtors  who  by  express 

consider  the  case  of  Ogden  v.  Saunders  as  written  consent  made  their  notes  negotiable 

authority  for  the  proposition  that  a  State  in-  at  the  bank,  did  not  conflict  with  the  provis- 

solvent  law,  when  no  general  law,  passed  by  ions  relating  to  trial  by  jury  or  the  law  of 

the  Congress  of  the  United  States  establish-  the  land  ;  but  they  also  held,  that  the  provis- 

ing    a  uniform   system  of  bankruptcy  is  in  ion  did  not  create  a  chartered  right  in  the 

force,  is  not  per  se  and  by  force  of  the  clause  bank — that  it  related  to  the  remedy  and  not 

in  the  Constitution  of  the  United  States  vest-  the  right,  and  as  such  was  subject  to  legisla- 

ing  in   Congress  the  power  of  passing  such  tive  control.     Bank  of  Columbia  v.  Okely,  4 

law,  unconstitutional  and  invalid ;  but  that  Wheaton,  245 ;  see  also  Young  v.  The  Bank 

the  law  of  a  State  providing  for  the  discharge  of  Alexandria,  4  Cranch,  384. 
of  an  insolvent  debtor  upon  the  surrender  of          \  Kent  terms  this  language  of  Marshall, 

his  property,  so  far  as  it  operates  upon  con-  C.  J.,  general,  latitudinary,  and   hazardous, 

tracts  made  after  such  law  within  such  State  and  says,  "  It  seems  to  me  that  to  lessen  or 

by  citizens  thereof  then  resident  therein,  and  take  away  from  the  extent  and  efficiency  of 


•624  BANKRUPT   LAWS. 

The  subject  was  again  considered  by  the  same  tribunal.  In 
a  case  already  cited,  where  certain  laws  of  Kentucky  were  com- 
plained of  as  infringing  the  constitutional  provision  because, 
contrary  to  a  compact  with  the  State  of  Virginia,  they  rendered 
the  rights  of  claimants  to  lands  less  secure  by  depriving  them 
of  .the  fruits  of  their  property,  and  charging  them  with  the 
value  of  improvements,  it  was  said,  "The  objection  to  a  law  on 
the  ground  of  its  impairing  the  obligation  of  a  contract  can 
never  depend  on  the  extent  of  the  change  which  the  law  effects 
in  it.  The  court  proceeded  to  declare,  that  "  legislation  which 
should  deny  to  the  owner  of  land  a  remedy  to  recover  the  pos- 
session of  it,  or  to  recover  the  profits,  or  clogging  his  recovery 
of  the  possession  or  profits  by  conditions  and  restrictions  tend- 
ing to  diminish  their  value,  impaired  his  right  to  and  interest  in 
the  property ; "  and  in  the  principal  case  they  held  the  statutes 
in  question  unconstitutional  and  void.  * 

The  subject  of  the  extent  to  which  the  remedy  can  be  al- 
tered without  impairing  the  obligation,  soon  came  up  more  dis- 
tinctly for  consideration.  In  March,  1814,  Haile  being  a 
prisoner  in  Rhode  Island  for  debt,  gave  bond  to  the  jail  limits 
to  continue  a  true  prisoner  until  lawfully  discharged.  In  June, 
1814,  he  presented  a  petition  to  the  Legislature  of  Rhode 
Island  for  relief,  and  for  the  benefit  of  an  act  passed  in  Rhode 
Island  in  June,  1756,  but  then  no  longer  in  force,  for  the  relief 
of  insolvent  debtors.  In  1816  the  prayer  of  his  petition  was 
granted,  and  thereafter  a  discharge  from  his  debts  and  from  im- 
prisonment was  granted  him  by  the  proper  court.  Suit  being 
brought  on  the  bond,  the  legislative  proceedings  and  the  dis- 
charge were  pleaded,  and  a  demurrer  interposed,  on  which  the 
question  went  up  to  the  Supreme  Court  of  the  United  States. 
The  court  premised  by  saying  that  the  Legislature  of  Rhode 
Island  had  been  in  the  constant  habit  of  entertaining  petitions 
of  a  similar  character  to  that  of  Haile ;  and  held  the  discharge 
valid,  saying,  "The  discharge  so  far  as  it  related  to  the  im- 

the  remedy  to  enforce  the  contract  legally  "  I  say,  with  great  confidence,  that  a  law 
existing  when  the  contract  was  made,  impairs  taking  away  all  remedy  from  existing  con- 
its  value  and  obligation."  Com.  vol.  i,  p.  456 ;  tracts  would  be  manifestly  a  law  impairing 
vide  also  ante,  pp.  1 13,  165,  171.  the  obligation  of  contracts."  Per  Tritnble,J., 
*  Green  v.  Biddle,  8  Wheat,  pp.  84  and  76.  12  Wheat,  p.  327. 


THE    OBLIGATION   AND   THE    REMEDY.  G25 

prisonment  of  the  defendant  affected  the  remedy  in  part  only, 
and  was  in  the  due  and  ordinary  exercise  of  the  powers  vested 
in  the  Legislature  of  Rhode  Island,  and  was  a  lawful  discharge 
and  no  escape,  and  of  course  no  breach  of  the  condition  of  the 
bond  in  question."  *  The  court  also  cited  the  language  above 
used,  in  Sturges  v.  Crownin shield,  and  said,  "Can  it  be  doubted 
that  the  Legislatures  of  the  States,  so  far  as  relates  to  their  own 
process,  have  a  right  to  abolish  imprisonment  for  debt  altogether, 
and  that  such  law  might  extend  to  present  as  well  as  to  future 
imprisonment  ? "  f 

The  general  and  sweeping  character  of  the  language  of  these 
cases,  and  the  singular  omission  to  state  any  restrictions  or  to 
fix  any  general,  practical  line  of  demarkation  in  regard  to  the 
power  of  the  State  Legislatures,  was  perhaps  the  cause,  among 
others,  that  many  laws  were  passed  by  the  States  striking  at 
the  remedy  of  contracts  in  a  very  serious  way ;  and  that  the 
State  courts  have  frequently  showed  a  disposition  to  sustain 
legislation  of  this  character.  * 

Previous  to  1838,  in  the  State  of  Massachusetts,  creditors 
had  by  law  a  right  to  secure  their  claims  by  attachments.  An 
act  was  passed  on  the  23d  of  April,  1838,  to  go  into  effect  on 
the  1st  of  August  of  that  year,  organizing  what  was,  in  fact,  a 
State  bankrupt  system  providing  for  the  appointment  of  .an  as- 
signee, an  equal  distribution  of  assets,  and  a  discharge  of  the 
debtor.  The  act  declared  that  all  the  property  of  the  debtor 
should  be  vested  in  the  assignees,  although  then  attached  on 
mesne  process,  but  saved  all  rights  which  had  accrued  to  any 
person  by  virtue  of  the  prior  system.  Where  a  debt  was  due 
before  the  passage  of  this  act,  of  23d  April,  1838,  and  an  at- 
tachment issued  at  the  suit  of  an  individual  creditor  on  the  Yth 
of  August,  1838,  or  after  it  went  into  effect,  it  was  held  that 
the  attachment  and  lien  of  the  attaching  creditor  could  not  be 
sustained  as  against  the  assignees  under  the  act  of  1838,  on  the 
ground  that  the  act  only  impaired  the  remedy,  and  did  not 

*  Washington,  J.,  dissented,  in  a  clear  and  der  the  very  curious,  original  charter  of  Rhode 

able  opinion.  Mason  v.  Haile,  12  Wheat.  379.  Island,  by  which  no  division  of  the  powers  of 

f  It  may  be  observed  of  this  case,  as  of  government  were  created,  and  under  which 

the  interesting  one  of  Wilkinson  v.  Leland,  2  the  Legislature  seems  to  haye  exercised  a  des- 

Peters,  627,  that  they  were  both  decided  un-  potic  sort  of  authority. 


40 


626  THE  OBLIGATION   AND  THE  REMEDY. 

affect  the  contract.  And  the  court  said,  "  A  creditor  cannot  be 
said  to  be  deprived  of  all  remedy,  which,  if  true,  would  be  tan- 
tamount to  the  discharge  of  his  claim;  but  his  contract  remains 
in  full  force,  and  the  limited  remedy  which  is  left  to  enforce 
the  payment  would  be  more  or  less  valuable  according  to  cir- 
cumstances." * 

The  laxity  of  legislative  practice  and  of  judicial  decisions, 
finally  brought  up  the  whole  subject  again  before  the  Supreme 
Court  of  the  United  States ;  and  their  original  language  was 
very  seriously  modified.  Certain  laws  of  Illinois,  passed  in 
1841,  declared  that  the  equitable  estate  of  the  mortgagor  in 
premises  mortgaged  before  the  passage  of  the  act,  should  not 
be  extinguished  for  twelve  months  after  a  sale  and  a  decree  in 
chancery,  and  prohibited  any  sale  unless  two-thirds  of  the 
amount  at  which  the  property  had  been  valued  by  appraisers 
should  be  bid  therefor.  These  acts  being  brought  up  for  adju- 
dication before  the  Supreme  Court  of  the  United  States,  were , 
declared  to  be  void  within  this  clause  of  the  Constitution  of 
the  United  States.  The  court  held  the  twelve  months'  delay 
and  the  restriction  on  the  sale  both  clearly  to  impair  the  con- 
tract, as  far  as  regarded  mortgages  executed  previous  to  the 
passage  of  the  law.f  I  give  an  extract  from  the  able  opinion 
of  Mr.  Chief  Justice  Taney,  on  account  of  the  importance  of  the 
subject ;  but  I  cannot  refrain  from  saying  that,  it  appears  to  me, 
if  the  reasoning  were  pushed  to  its  legitimate  and  logical  results, 
contracts  would  have  a  much  more  efficient  protection  than  they 
have  yet  received. 

*  Bigelow  v.  Pritchard,  21  Pick.  1*74,  de-  fence  to  an  action  on  a  prison  bond  executed 

cided  in  1838.     This  language  declares  that  a  before  the  passage  of  the  statute.     Walter  v. 

substantial  limitatinti  or  diminution  of  the  rem-  Bacon,  8  Mass.  468. 

edy  does  not  impair  the  obligation  of  the  con-  I  may  here  notice  some  other  cases  be- 

tract ;  and  it  appears  very  difficult  to  sustain  longing  to  the  lax  school  of  interpretation, 

its  reasoning,  either  on  any  construction  of  In  Woodfin  v.  Hooper,  4  Humph.  Tenn.  R.  13, 

the  phraseology  of  the  constitutional  clause,  it  was  held   that  the  right  to   imprison  the 

or  on  principle;  nor  does  it  seem  in  accord-  debtor  as  part  of  the  remedy  formed  no  part 

ance  with  the  later  decisions.     I  may  remark  of  the    contract.     In  Chadwick  v.  Moore,  8 

that  the  court  in  this  case  added, "  A  creditor  Watts  &  Serg.  49,  a  State  statute  suspending 

has  no  vested  right  in  the  mere  remedy,  un-  sales  on  executions  for  a  year,  unless  two- 

lesx  he  may  have  exercised  that  rigid,  by  the  com-  thirds  of  the  appraised  value  was  realized, 

menccment  of  legal  process  under  it  before  the  was  held  not  unconstitutional.     See  also,  on 

law  making  an  alteration  concerning  it  shall  the  same  siile,  Evans  v.  Montgomery,  4  Watts 

have  gone  into  operation."     I  shall  call  atten-  &  Serfj.  218,  and  Patin  v.  Prejean,  7  Louis, 

tion  elsewhere  to  this  important  qualification.  Rep.  SOI ;  Newton  v.  Tibbats,  2  Eng.  R.  160; 

We  have  elsewhere  seen  that  in  the  same  Bronson  v.  Newberry,  2  Doug.  Michigan,  38  ; 

State  an  act  of  the  Legislature  enlarging  the  Rockwell  v.  Hubbeli,  2  Doug.  Michigan,  197. 
limits  of  a  prison-yard,  was  held  a  good  de-  f  Mr.  Justice  M'Lean  dissented. 


THE  OBLIGATION  AND  THE   REMEDY.  627 

If  the  laws  of  the  State  passed  afterwards  had  done  nothing  more  than 
change  the  remedy  upon  contracts  of  this  description,  they  would  be  liable  to 
no  constitutional  objection.  For,  undoubtedly,  a  State  may  regulate  at  pleasure 
the  modes  of  proceeding  in  its  courts  in  relation  to  its  past  contracts  as  well  as 
future.  It  may,  for  example,  shorten  the  period  of  time  within  which  claims 
shall  be  barred  by  the  statute  of  limitations.  It  may,  if  it  thinks  proper,  direct 
that  the  necessary  implements  of  agriculture,  or  the  tools  of  the  mechanic,  or 
articles  of  necessity  in  household  furniture,  shall,  like  wearing  apparel,  not  be 
liable  to  execution  on  judgments.  Regulations  of  this  description  have  always 
been  considered,  in  every  civilized  community,  as  properly  belonging  to  the 
remedy,  to  be  exercised  or  not  by  every  sovereignty,  according  to  its  own  views 
of  policy  and  humanity.  It  must  reside  in  every  State,  to  enable  it  to  secure 
its  citizens  from  unjust  and  harassing  litigation,  and  to  protect  them  in  those 
pursuits  which  are  necessary  to  the  existence  and  well-being  of  every  com- 
munity. And,  although  a  new  remedy  may  be  deemed  less  convenient  than  the 
old  one,  and  may  in  some  degree  render  the  recovery  of  debts  more  tardy  and 
difficult,  yet  it  will  not  follow  that  the  law  is  unconstitutional. 

Whatever  belongs  merely  to  the  remedy,  may  be  altered  according  to  the 
will  of  the  State;  provided  the  alteration  does  not  impair  the  obligation  of  the 
contract.  But.'if  that  effect  is  produced,  it  is  immaterial  whether  it  is  done  by 
acting  on  the  remedy,  or  directly  on  the  contract  itself.  In  either  case,  it  is  pro- 
hibited by  the  Constitution. 

It  is  difficult,  perhaps,  to  draw  a  line  that  would  be^applicable,  in  all  cases,  be- 
tween legitimate  alterations  of  the  remedy  and  provisions  which,  in  the  form  of 
remedy,  impair  the  right.  But  it  is  manifest  that  the  obligation  of  the  contract, 
and  the  rights  of  a  party  under  it,  may  in  effect  be  destroyed  by  denying  a  rem- 
edy altogether  ;  or  may  be  seriously  impaired  by  burdening  the  proceedings 
with  new  conditions  and  restrictions,  so  as  to  make  the  remedy  hardly  worth 
pursuing.  And  no  one,  we  presume,  would  say  that  there  is  any  substantial  dif- 
ference between  a  retrospective  law,  declaring  a  particular  contract  or  class  of 
contracts  to  be  abrogated  and  void,  and  one  which  took  away  all  remedy  to  en- 
force them,  or  encumbered  it  with  conditions  that  rendered  it  useless  or  imprac- 
ticable to  pursue  it. 

This  brings  us  to  examine  the  statutes  of  Illinois  which  have  given  rise  to 
this  controversy.  As  concerns  the  law  of  February  19, 1841,  it  appears  to  the 
court  not  to  act  merely  on  the  remedy,  but  directly  upon  the  contract  itself,  and 
to  engraft  upon  it  new  conditions  injurious  and  unjust  to  the  mortgagee.  It  de- 
clares that,  although  the  mortgaged  premises  should  be  sold  under  the  decree 
of  the  Court  of  Chancery,  yet  that  the  equitable  estate  of  the  mortgagor  shall 
not  be  extinguished,  but  shall  continue  for  twelve  months  after  the  sale ;  and  it 
moreover  gives  a  new  and  like  estate,  which  before  had  no  existence,  to  the 
judgment  creditor,  to  continue  for  fifteen  months.  If  such  rights  may  be  added 
to  the  original  contract  by  subsequent  legislation,  it  would  be  difficult  to  say  at 
what  point  they  must  stop.  An  equitable  interest  in  the  premises  may,  in  like 
manner,  be  conferred  upon  others ;  and  the  right  to  redeem  may  be  so  prolonged 


628  THE  OBLIGATION  AND   THE  REMEDY. 

as  to  deprive  the  mortgagee  of  the  benefit  of  his  security,  by  rendering  the  prop- 
erty unsalable  for  anything  like  its  value.  This  law  gives  the  mortgagor  and 
the  judgment  creditor  an  equitable  estate  in  the  premises,  which  neither  of  them 
would  have  been  entitled  to  under  the  original  contract ;  and  these  new  interests 
are  directly  and  materially  in  conflict  with  those  which  the  mortgagee  acquired 
when  the  mortgage  was  made.  Any  such  modification  of  a  contract  by  subse- 
quent legislation,  against  the  consent  of  one  of  the  parties,  unquestionably  im- 
pairs its  obligations,  and  is  prohibited  by  the  Constitution. 

The  second  point  certified  arises  under  the  law  of  February  27, 1841.  The 
observations  already  made  in  relation  to  the  other  act  apply  with  equal  force  to 
this.  It  is  true  that  this  law  apparently  acts  upon  the  remedy,  and  not  directly 
upon  the  contract.  Yet  its  effect  is  to  deprive  the  party  of  his  pre-existing  right 
to  foreclose  the  mortgage  by  a  sale  of  the  premises,  and  to  impose  upon  him 
conditions  which  would  frequently  render  any  sale  altogether  impossible.  And 
this  law  is  still  more  objectionable,  because  it  is  not  a  general  one,  prescribing 
the  mode  of  selling  mortgaged  premises  in  all  cases,  but  it  is  confined  to  judg- 
ments rendered  and  contracts  made  prior  to  the  1st  of  May,  1841.  The  act 
was  passed  on  the  27th  of  February,  in  that  year ;  and  it  operates  mainly  on 
past  contracts,  and  not  on  the  future.  If  the  contracts  intended  to  be  affected 
by  it  had  been  specifically  enumerated  in  the  law,  and  these  conditions  applied 
to  them,  while  other  contracts  of  the  same  description  were  to  be  enforced  hi 
the  ordinary  course  of  legal  proceedings,  no  one  would  doubt  that  such  a  law 
was  unconstitutional.  Here  a  particular  class  of  contracts  is  selected,  and  en- 
cumbered with  these  new  conditions;  and  it  can  make  no  difference  in  principle 
whether  they  are  described  by  the  names  of  the  parties,  or  by  the  time  at  which 
they  were  made. 

In  the  case  before  us,  the  conflict  of  these  laws  with  the  obligations  of  the 
contract  is  made  the  more  evident  by  an  express  covenant  contained  in  the  in- 
•  strument  itself,  whereby  the  mortgagee,  in  default  of  payment,  was  authorized 
to  enter  on  the  premises  and  sell  them  at  public  auction ;  and  to  retain  out  of 
the  money  thus  raised  the  amount  due,  and  to  pay  the  overplus,  if  any,  to  the 
mortgagor.     It  is  impossible  to  read  this  covenant,  and  compare  it  with  the  laws 
now  under  consideration,  without  seeing  that  both  of  these  acts  materially  inter- 
fere with  the  express  agreement  of  the  parties  contained  in  this  covenant.     Yet 
the  right  here  secured  to  the  mortgagee  is  substantially  nothing  more  than  the 
right  to  sell,  free  an.l  discharged  of  the  equitable  interest  of  Kii/zie  and  wife,  in 
order  to  obtain  his  money.     Now,  at  the  time  this  deed  was  executed,  the  right 
to  sell  free  and  discharged  of  the  equitable  estate  of  mortgagor  in  the  State, 
existed  without  the  aid  of  this  express  covenant,  and  the  only  difference  between 
the  right  annexed  by  law  and  that  given  by  the  covenant,  consists  in  this — that 
in  the  former  case  the  right  of  sale  must  be  exercised  under  the  direction  of  the 
Court  of  Chancery,  upon  such  terms  as  it  shall  prescribe,  and  the  sale  made  by 
an  agent  of  the  court ;  in  the  latter,  the  sale  is  made  by  the  party  himself.     But, 
even  under  this  covenant,  the  sale  made  by  the  party  is  so  far  subject  to  the 
supervision  of  the  court,  that  it  will  be  set  aside  and  a  new  one  ordered,  if 


THE  OBLIGATION  AND  THE  REMEDY.  629 

reasonable  notice  is  not  given,  or  the  proceedings  be  regarded,  in  any  respect,  as 
contrary  to  equity  and  justice.  There  is,  therefore,  in  truth,  but  little  material 
difference  between  the  rights  of  the  mortgagee,  with  or  without  this  covenant. 
The  distinction  consists  rather  in  the  form  of  the  remedy  than  in  the  substantial 
right;  and  as  it  is  evident  that  the  laws  in  question  invade  the  right  secured  by 
this  covenant,  there  can  be  no  sound  reason  for  a  different  conclusion  where 
similar  rights  are  incorporated  by  law  into  the  contract,  and  form  a  part  of  it 
at  the  time  it  is  made. 

Mortgages  made  since  the  passage  of  these  laws  must  undoubtedly  be  gov- 
erned by  them  ;  for  every  State  has  the  power  to  prescribe  the  legal  and  equi- 
table obligations  of  a  contract  to  be  made  and  executed  within  its  jurisdiction. 
It  may  exempt  any  property  it  thinks  proper  from  sale,  for  the  payment  of  a 
debt ;  and  may  impose  such  conditions  and  restrictions  upon  the  creditor  as  its 
judgmert  and  policy  may  dictate.  And  all  future  contracts  would  be  subject 
to. such  provisions,  and  they  would  be  obligatory  upon  the  parties  in  the  courts 
of  the  United  States  as  well  as  those  of  the  State.  We  speak,  of  course,  of 
contracts  made  and  to  be  executed  in  the  State.  It  is  a  case  of  that  description 
that  is  now  before  us,  and  we  do  not  think  it  proper  to  go  beyond  it.* 

And  again,t  the  same  principle  was  applied  to  the  same 
laws,  and  they  were  declared  unconstitutional  so  far  as  they  af- 
fected mortgages  given  before  their  passage.^ 

But  this  rule  is  only  understood  to  protect  contracts  made 
before  the  passage  of  the  law.  Contracts  made  after  the  pas- 
sage of  the  statute  are  controlled  by  it,  on  the  ground  that  the 
laws  in  existence  when  the  contract  is  made,  are  necessarily  re- 
ferred to,  and  form  part  of  the  contract,  and  fix  the  rights  and 
obligations  growing  out  of  it.  I 

These  decisions  exercised  a  marked  and  immediate  influence 
on  the  legislation  of  the  country  and  on  the  action  of  the  State 
tribunals ;  and  it  may  perhaps  be  said,  with,  however,  many 
serious  exceptions,  that  the  tendency  of  the  later  decisions  is  to 
treat  the  substantial  remedy  provided  by  the  laws  in  existence 
at  the  time  of  the  formation  of  the  contract,  as  a  material  part 

*  Bronson  T.  Kinzie,  1  Howard,   315,  de-  constitutional  questions,  its  magnitude  cannot 

cided  in  1843.  easily  be  overstated. 

I  may  be  permitted  to  express  my  regret  \  M'.Cracken  v.  Hayward,  2  Howard,  608. 

that  in  this  case,  as  in  Sturges  v.  Crownin-  j  Mr.  Justice  Catron  dissented;  see  also, 

shield,  and  the  Dartmouth  College  Case,  the  Curran  v.  State  of  Arkansas,  15  Howard,  304, 

Supreme  Court  felt  themselves  at  liberty  to  318,  where  the  same  doctrine  is  laid  down  in 

go  beyond  the  case  before  them,  and  to  ex-  an  able  opinion  by  Mr.  Justice  Curtis, 
press  an  opinion  in  regard  to  other  questions,  |  Moore  v.  Fowler,  Hempstead's  Arkansas 

of  great  moment  but  not  necessarily  in  judg-  C.  C.  Reports,  537.     The  law  had  been  before 

ment.     The  rule  which  confines  judicial  de-  held  valid,  even  as  to  contracts  made  before 

cisions  to  the  very  matter  before  the  tribunal  it.     U.  S.  v.  Con  way,  Ibiil.  313. 
is  important  in  all  cases ;  but  in  regard  to 


G30  THE   OBLIGATION  AIS'D  THE  REMEDY. 

of  the  contract ;  and  that  any  legislation  which  materially  im- 
pairs the  vigor  or  efficiency  of  that  remedy,  in  just  so  far  im- 
pairs the  contract. 

Notwithstanding  the  great  weight  of  authority  on  the  other 
side  of  the  question,  I  am  free  to  confess  my  entire  inability  to 
distinguish  between  the  obligation  and  the  remedy  of  a  con- 
tract. Obligation,  I  suppose,  means  binding  force,  the  force  or 
constraint  which  binds  the  party  to  perform  his  agreement. 
What,  then,  is  in  legal  acceptation,  the  binding  force  of  a  con- 
tract ?  It  certainly  is  not  the  mere,  naked  promise.  It  is  not 
the  moral  duty.  It  is  not  honor,  nor  fashion,  that  binds  the 
contracting  party  to  keep  his  engagement.  What  is  it  then, 
but  the  remedy — the  coercive  remedy — which  the  law  gives 
against  the  person  or  property  of  the  defaulting  party.  It 
seems  to  me,  that  looking  at  a  contract  legally  and  practically 
as  an  instrument  by  which  rights  of  property  are  created,  and 
on  which  they  repose,  obligation  and  remedy  are  strictly  con- 
vertible terms.  Take  away  the  whole  remedy,  and  it  is  ad- 
mitted the  contract  is  gone.  How,  then,  if  a  material  part  of 
the  remedy  be  taken  away,  can  it  be  said  that  the  obligation  is 
not  impaired?  A  confusion  would  seem  to  have  arisen  from 
not  sufficiently  taking  into  consideration  the  full  sense  of  the 
term  impaired.  It  is  said  that  the  remedy  forms  no  part  of  the 
contract,  and  that  the  creditor  makes  his  bargain,  knowing  that 
he  is  at  the  mercy  Of  future  legislation ;  but  as  I  understand  it, 
all  the  cases  distinguishing  between  the  operation  of  State  in- 
solvent laws  and  State  stop  laws,  passed  before  the  making  of 
the  contract,  and  those  made  after,  proceed  on  the  very  ground 
that  the  legislation  in  force  at  the  time  of  the  contract  enters 
into  and  forms  part  of  it.  It  is  said  again,  that  in  all  countries, 
and  at  all  times,  the  remedy  has  been  under  the  control  of  the 
sovereign  authority.  This  is  merely  begging  the  question,  or 
rather  arguing  from  false  analogies.  The  very  question  with 
us,  is  whether,  under  our  system,  we  have  not  declared  a  dif- 
ferent rule.  No  one  seeks  to  deny  that  the  remedy  should  be 
to  a  certain  extent  under  legislative  control.  Tribunals  may 

o  •> 

be  changed,  procedure  altered  :  these  modifications  do  in  no- 
wise impair  the  remedy  or  prejudice  the  holder  of  a  contract. 


THE  OBLIGATION  AND  THE  REMEDY.  G3l 

But  it  seems  to  me  the  only  logical  rule  to  hold,  that  any  legis- 
lation which  materially  diminishes  the  remedy  given  by  the 
law  to  the  creditor  at  the  time  his  contract  is  made,  just  so  far 
impairs  the  obligation  of  the  contract.  We  must,  however, 
take  our  law  from  the  adjudged  cases. 

In  Pennsylvania  and  Missouri,  the  doctrine  of  Bronson  v. 
Kinzie  has  been  followed,  and  State  stop  laws  of  the  same 
kind  have  been  declared  invalid ;  *  and  in  Indiana  it  has  been 
generally  decided  that  the  sale  of  property  on  execution  under 
judgment  on  a  contract,  is  governed  by  the  laws  in  force  when 
the  contract  was  made.f 

In  1830  the  Legislature  of  Mississippi  passed  an  act  entitled, 
An  act  to  establish  a  planter's  bank  in  the  State  of  Mississippi, 
by  which,  among  other  things,  the  bank  was  authorized  to  re- 
ceive, retain,  and  enjoy  its  property  of  every  kind,  and  to  grant, 
demise,  alien,  and  dispose  of  the  same.  In  1840  the  State  of 
Mississippi  passed  a  law  declaring  that  it  should  not  be  lawful 
for  any  bank  in  the  State  to  transfer  by  indorsement  or  other- 
wise, any  note  or  bill  receivable,  and  if  an  action  was  brought 
on  any  note  or  bill  so  transferred,  the  same  should  be  abated. 
The  Supreme  Court  of  the  United  States  held  that  the  obliga- 
tion in  the  contract  between  the  State  and  the  bank  was,  that 
the  bank  should  have  power  to  assign  and  transfer  its  prop- 
erty ;  that  the  contract  between  the  bank1  and  the  signers  of  its 
notes  was,  that  they  should  be  paid  in  the  hands  of  an  assignee ; 
that  the  law  of  1840,  by  abating  the  suit,  and  thus  destroying 
all  remedy  on  the  note  in  suit,  impaired  the  obligation  of  both 
contracts,  and  it  was  held  void.J 

*  Lancaster  Savings  Institution  v.  Pei-  charters,  no  injury  is  committed  not  atoned 

gart,  cited  4  Kent  Com.  434,  note  a ;  Baum-  for ;  nothing  is  done  not  allowed  by  pre-ex- 

gardoer  v.  Circuit  Court,  4  Missouri  R.  50.  isting  laws  or  rights,  and  consequently  no 

f  Harrison  v.  Stipp,  8  Blackf.  R.  455.  part  of  the  obligation  of  the  contract  is  iru- 

\  Planters'  Bank  v.  Sharp,  t>  How.  301.  paired.  See  case  of  the  West  River  Bridge, 

This  case  contains  the  following  brief  and  and  authorities  there  cited,  in  6  Howard,  507. 

comprehensive  summary  of  the  decisions  of  "  S~>,  where  the  Legislature  afterward  tax 

the  courts  on  this  clause,  by  Mr.  Justice  the  property  of  such  corporations,  in  common 

Woodbury  :  with  other  property  of  like  kind  in  the  State, 

"  Where  a  new  law  has  taken  the  prop-  it  is  under  an  implied  stipulation  to  that 

erty  of  a  corporation  for  highways,  under  the  effect,  and  violates  no  part  of  the  contract 

right  of  eminent  domain,  which  reaches  all  contained  in  the  charter.  Armstrong  v. 

property,  private  or  corporate,  on  a  public  Treasurer  of  Athens  County,  16  Peters,  281. 

necessity,  and  on  making  full  compensation  See  Providence  Bank  v.  Billings,  4  Peters, 

for  it,  and  under  an  implied  stipulation  to  be  514 ;  11  Peters,  567  ;  4  Wheat.  699  ;  12  Mass, 

allowed  to  do  it  in  all  public  grants  and  Rep.  252 ;  4  Gill  and  Johns.  132 ;  4  Dura.  & 


632 


THE   OBLIGATION  AND  THE  REMEDY. 


Where  a  railroad  charter,  passed  in  1828,  provided  for  a 
mode  of  deterrning  the  value  of  laud  wanted  for  the  road,  by 
the  inquisition  of  a  jury,  the  fee  to  vest  in  the  company  on  pay- 
ment or  tender  of  the  sum  assessed,  in  1836  an  inquisition  was 
had  and  the  damages  assessed  ;  but  in  1841,  before  payment  or 
tender  made,  the  Legislature  interposed  and  ordered  a  new  in- 
quisition to  be  taken, — it  was  held  that  this  did  not  impair  the 
contract  contained  in  the  original  charter,  that  the  company 
had  acquired  no  vested  right  by  contract  with  the  State,  and 
that  consequently  none  was  impaired.* 

An  interesting  question  has  been  recently  presented  in  New 
Jersey,  in  which  a  sound  and  vigorous  interpretation  has  been 


East,  2;  5  Barn.  &  Aid.  157;  2  Railway 
Cases,  23. 

"  So,  where  no  clause  existed  in  the  charter 
for  a  bridge  against  authorizing  other  bridges 
near  at  suitable  places,  it  is  no  violation  of 
the  terms  or  obligation  of  the  contract  to 
authorize  another.  Charles  River  Bridge  v. 
The  Warren  Bridge  et  al.  11  Peters,  420. 

"  Nor  is  it,  if  a  law  make  deeds  by  femes 
covert  good  when  bona  fide,  though  not  ac- 
knowledged in  a  particular  form  ;  because  it 
confirms  rather  than  impairs  their  deeds,  and 
carries  out  the  original  intent  of  the  parties. 
Watson  v.  Mercer,  8  Peters,  88. 

"  Or  if  a  State  grant  lands,  but  makes  no 
stipulation  not  to  legislate  further  upon  the 
subject,  and  proceeds  to  prescribe  a  mode  or 
form  of  settling  titles,  this  does  not  impair 
the  force  of  the  grant,  or  take  away  any  right 
under  it.  Jackson  v.  Lamphire,  3  Peters,  280. 

"  Nor  does  it,  if  a  State  merely  changes 
the  remedies  in  form,  but  does  not  abolish 
them  entirely,  or  merely  changes  the  mode  of 
recording  deeds,  or  shortens  the  statute  of 
limitations.  3  Peters,  280  ;  Hawkins  v.  Bar- 
ney's Lessee,  5  Ib.  457. 

"  It  has  been  held  also,  not  only  that  the 
Legislature  may  regulate  anew  what  is  merely 
the  remedy,  but  some  State  courts  have  de- 
cided that  it  may  make  banking  corporations 
subject  to  certain  penalties  for  not  performing 
their  duties,  such  as  paying  their  notes  on 
demand  in  specie,  and  that  does  not  violate 
any  contract.  Brown  v.  Penobscot  Bank,  8 
Mass.  Rep.  445;  2  Hill,  242;  5  Howard, 
342.  It  is  supposed  to  help  enforce,  and  not 
impair,  what  the  charter  requires.  But  on 
this,  being  a  very  different  question,  we  give 
no  opinion. 

"  But  look  a  moment  at  the  other  class  of 
decisions.  Let  a  charter  or  grant  be  entirely 
expunged,  as  in  the  case  of  the  Yazoo  claims 
in  Georgia,  and  no  one  can  doubt  that  the 


obligation  of  the  contract  is  impaired.  Fletcher 
v.  Peck,  6  Cranch,  87. 

"  So,  if  the  State  expressly  engage  in  a 
grant  that  certain  lands  shall  never  be  taxed, 
and  a  law  afterwards  passes  to  tax  them. 
State  of  New  Jersey  v.  Wilson,  7  Cranch,  164. 
Or  that  corporate  property  and  franchises 
shall  be  exempt,  and  they  are  taxed.  Gordon 
v.  Appeal  Tax  Court,  3  Howard,  138. 

"  So,  if  lands  have  been  granted  for  one 
purpose,  and  an  attempt  is  made  by  law  to 
appropriate  them  to  another,  or  to  revoke  the 
grant.  Terrett  v.  Taylor,  9  Cranch,  43 ; 
Town  of  Pawlett  v.  Clark,  9  Cranch,  292. 

"  Or  if  a  charter,  deemed  private  rather 
than  public,  has  been  altered  as  to  its  govern- 
ment and  control.  Dartmouth  College  v. 
Woodward,  4  Wheat.  518. 

"  Or  if  owners  of  land  granted  without 
conditions  or  restrictions,  have  been  by  the 
Legislature  deprived  of  their  usual  remedy 
for  mesne  profits,  or  compelled  to  pay  for  cer- 
tain kinds  of  improvements  for  which  they 
were  not  otherwise  liable.  Green  v.  Biddle, 
8  Wheat.  1. 

"  Or  if  after  a  mortgage,  new  laws  are 
passed  prohibiting  a  sale  to  foreclose  it  un- 
less two-thirds  of  its  appraised  value  is  offered, 
and  enacting  further  that  the  equitable  title 
shall  not  be  extinguished  until  twelvemonths 
after  the  sale.  Bronson  v.  Kinzie,  1  Howard, 
311;  M'Cracken  v.  Hay  ward,  2  Ib.  608 ; " 
Planters'  Bank  v.  Sharp  el  al.  6  Ib.  331. 

*  Baltimore  and  Susquehauna  Railroad 
Co.  v.  Nesbit,  10  Howard,  395. 

See,  in  Pennsylvania,  the  Erie  and  North 
East  R.  R.  v.  Casey,  26  Penn.  287,  a  case  of 
great  interest,  growing  out  of  the  repeal  of  a 
railroad  charter.  The  repealing  act  was  held 
constitutional,  and  various  points  in  regard 
to  the  true  construction  of  the  clause  in  re- 
gard to  the  obligation  of  contracts,  the  repeal 
of  charters,  and  the  nature  and  effect  of  a 
preamble,  will  be  found  discussed. 


THE   OBLIGATION  AND  THE   REMEDY.  G33 

given  to  the  clause.  The  Somerville  Water-Power  Company, 
incorporated  by  the  State  of  New  Jersey,  borrowed  money  on 
an  issue  of  their  negotiable  bonds  secured  by  a  mortgage  of  the 
real  estate  of  the  company,  conditioned  that  on  default  of  pay- 
ment the  lenders  should  have  the  right  to  re-enter  and  sell.  A 
bill  in  equity  having  been  filed  against  the  company,  and  re- 
ceivers appointed,  a  statute  was  passed  by  the  State  of  New 
Jersey,  in  the  year  1856,  authorizing  the  receivers  to  sell  the 
real  estate  of  the  company  free  and  dear  from  all  incumbrances, 
including  the  mortgages  in  question  ;  and  under  the  act  a  sale 
took  place.  A  bill  was  thereupon  filed  by  one  of  the  mortgage 
creditors,  to  set  aside  this  receiver's  sale,  to  foreclose  in  his  own 
behalf,  and  praying  that  the  act  of  1856  might  be  decreed  un- 
constitutional and  void.  Mr.  Justice  Grier,  on  the  New  Jersey 
Circuit,  has  declared  that  the  act  authorizing  the  sale  impairs 
the  obligation  of  the  contract  in  so  far  as  it  alters  the  estate  of 
the  mortgagee  in  the  premises,  and  moreover  violates  the  State 
Constitution  of  New  Jersey,  which,  as  we  have  elsewhere  seen,* 
prohibits  any  change  of  remedy  existing  at  the  time  of  ^the 
making  of  the  contract,  f 

Some  of  the  recent  State  decisions,  however,  exhibit  a  ten- 
dency again  to  relax  the  rule.  It  has  been  held  in  New  York, 
that  where  the  law  has  conferred  an  extraordinary  remedy 
upon  a  particular  class  of  creditors,  a  statute  taking  away  such 
remedy,  but  leaving  the  ordinary  means  for  the  collection  of 
the  debt  in  full  force,  is  not,  though  operating  upon  existing 
contracts,  within  the  constitutional  provision ;  arid  it  was  ac- 
cordingly decided,  that  an  act  (1836,  c.  369,  §  2),  repealing 

*  Ante,  p.  580.  jurisdiction  of  courts  of  law  or  equity;  eon- 

f  John  M.  Martin  v.  The  Somerville  Water-  sequently,  the  decisions  of  the  courts  of  New 

Power  Company  and  others.     I  find  the  case  Jersey   of  questions   arising   under  the    old 

reported  in  the  New  York  Evening  Post  for  Constitution,  cannot  be  cited  as  precedents 

April  4th,  1857.     In  his  opinion  in  this  case,  applicable  to  the  present  one,  which  carefully 

Mr.  Justice  Grier  says,  "  Previous  to  the  29th  defines  a>id  limits  the  powers  intrusted  to  the 

of  June,  1844,  the  State  of  New  Jersey  was  Legislature,  the  executive,  and  the  judiciary." 

governed  by  the   old  colonial   Constitution,  The  remark  is  important,  and  tends  to  throw 

adopted  on  the  2d  of  July,  17*76.     This  con-  light  upon  the  cases  of  Mason  v.  Haile,   12 

taiued  no  bill  of  rights,  nor  any  clear  limita-  Wheat,  p.  376;  ante,  p.  625;  and  Wilkinson 

tion  of  the  powers  of  the  Legislatura.     The  v.    Lelnnd,  2  Peters,    ante,   p.    625,   decided 

history  of  JN'ew  Jersey  legislation  exhibits  a  under  the   old    Constitution    or    charter   of 

long  list  of  private  acts  and  anomalous  legis-  Rhode  Island,  which  was  equally  lax  in  its 

lation  on  the  affairs  of  individuals,  assuming  definition  and  distribution  ot  the  powers  of 

control  over  wills,  deeds,  partitions,  trusts,  Government, 
and  other  subjects  usually  coming  under  the 


634  THE   OBLIGATION   AND  THE  REMEDY. 

the  provisions  of  a  prior  statute  allowing  a  landlord  to  claim 
rent  out  of  the  proceeds  of  property  seized  in  execution  on  the 
demised  premises,  was  valid  in  its  application  to  cases  existing 
when  the  act  was  passed.*  So,  it  has  been  held  in  the  same 
State,  following  the  intimation  made  obiter  in  Bronson  v.  Kin- 
zie,  that  a  law  exempting  certain  property  from  sale  and  execu- 
tion, applies  to  judgments  and  executions  on  debts  contracted 
before  as  well  as  after  its  passage.f  These  decisions  present 
questions  which  are,  however,  still  to  be  distinctly  passed  on 
by  the  Federal  tribunal. 

We  have  thus  far  considered  cases  where  the  effect  of  the 
act  in  question  was  directly  upon  the  final  remedy.  But  the 
preliminary  procedure  also  forms  part,  and  a  very  important 
part,  of  the  remedy ;  and  it  seems  to  be  settled  that  statutes  of 
limitation  pertain  to  the  remedy,  and  not  to  the  essence  of  the 
contract ;  and,  in  regard  to  this  also,  that  it  is  within  the  power 
of  the  State  Legislatures  to  regulate  the  remedy  and  modes  of 
proceeding,  in  relation  to  past  as  well  as  to  future  contracts. 
This  power  is  subject  only  to  the  restriction  that  it  cannot  be 
exercised  so  as  to  take  away  all  remedy  upon  the  contract,  or 
to  impose  upon  it  new  burdens  and  restrictions  which  materially 
impair  the  value  and  benefit  of  the  contract.  And,  accordingly, 
it  has  been  held  to  be  within  the  undoubted  competency  of 
the  State  Legislatures  to  shorten  the  period  of  limitation  of 
actions,  to  change  existing  rules  of  evidence,  and  to  prescribe 
new  rules  of  evidence  and  judicial  procedure, — all  to  affect 
both  past  and  future  rights  of  action.  Such  acts  are  held  to  be 
invalid  only  when  they  deprive  the  party  of  all  remedy,  by 
changing  the  period  of  limitation,  or  destroying  the  validity  of 
the  proof  on  which  his  claim  rested,  so  as  to  render  it  impos- 
sible to  establish  his  right. \ 

The  Supreme  Court  of  Massachusetts  has  said : 

If  the  Legislature  of  any  State  were  to  undertake  to  make  a  law  preventing 
the  legal  remedy  upon  a  contract  lawfully  made,  and  binding  on  the  party  to 

*  Stocking  v.  Hunt,  3  Denio,  274.  \  Bronson  v.  Kinzie,  1  How.  311 ;  M'Crack- 

f  In  Quackenbush  v.  Dauks,  1'Denio,  128,  en   v.    Hay  ward,    2   How.    608;    Jackson  v. 

affirmed  by  a  divided  court,  1  Coma.  129,  a  Lamphire,  3  Peters,  290 ;  Briscoe  v.  Auketell, 

contrary  result  was  arrived  at ;  but  the  point  28  Miss.  3t>l.     See,  also,  to  what  is  said  as  to 

has  been  finally  decided  in  Morse  v.  Ooold,  1  statutes  of  limitation  and  usury  in  Sturges  v. 

Kernan,  281.  Crowuinshield,  4  Wheat.  206. 


STATUTES  OF  LIMITATION.  G35 

it,  there  is  no  question  that  such  Legislature  would,  by  such  act,  exceed  its 
legitimate  powers.  Such  an  act  must  necessarily  impair  the  obligation  of  the 
contract  within  the  meaning  of  the  Constitution  ;  and  the  courts  of  law  would 
be  found,  therefore,  to  consider  it  as  a  void  act  of  legislation,  and  as  having  no 
force  or  authority.  But  to  extend  this  principle  to  acts  for  the  limitation  of 
suits  at  law  which,  when  enacted  with  a  due  discretion,  and  a  reasonable  time 
allowed  for  the  commencement  of  suits  on  existing  demands,  are  wholesome 
and  useful  regulations,  would  be  extravagant.  It  must  be  left  to  the  discretion 
of  the  Legislature  to  fix  the  proper  limitations.  In  the  case  under  consideration, 
the  term  of  a  year  is  not,  in  our  opinion,  unreasonably  short.  But  a  true  con- 
struction of  the  statute  in  question  will  not  extend  it  to  passing  actions  on  bonds 
where,  the  escape  having  taken  place  before  the  passing  of  the  act,  a  right  of 
action  had  vested  in  the  creditor.* 

The  following  case  exhibits,  in  a  strong  light,  the  power 
which  our  Legislatures  wield  by  this  concession  to  them  of  an 
almost  unlimited  authority  over  statutes  of  limitation.  Where 
the  State  of  Mississippi  passed  a  law  declaring  that  all  judg- 
ments which  had  been  obtained  in  any  other  State,  prior  to  the 
passage  of  the  law,  should  be  barred,  unless  suit  was  brought 
upon  the  judgment  within  two  years  after  the  passage  of  the 
statute — the  act  was  held  within  the  power  of  the  State,  even 
in  a  case  where  the  person  against  whom  the  judgment  was 
given  became  a  citizen  of  the  State  upon  the  day  on  which  he 
was  sued;  and  although  the  Supreme  Court,  in  deciding  the 
case,  admitted  that  the  statute  of  Mississippi  invited  to  the 
State  and  protected  absconding  debtors  from  other  States,  by 
refusing  the  creditor  a  remedy  in  his  judgment,  which  was  in 
full  force  in  the  State  when  the  debtor  absconded,  f 

In  regard  to  recording  acts  an  interesting  question  has  arisen. 
By  a  law  passed  in  1813  (April  12,  1813,  1  R  L.  369),  the 
State  of  New  York  enacted  that  all  deeds  made  after  February, 
1799,  of  lauds  in  certain  counties  specified,  should  be  recorded, 
and  that  every  such  deed  should  be  adjudged  fraudulent  and 
void  as  against  any  subseqiient^bona  fale  purchaser  or  mortgagee, 
unless  it  should  be  recorded  before  the  recording  of  the  deed 
or  conveyance  under  which  such  subsequent  purchaser  or  mort- 
gagee should  claim.  In  a  case  arising  under  this  act,  Mr.  Chan- 

*  Call  v.  Hagger  et  al.  8  Mass.  429.  See  Howard,  52Y.  It  is  worthy  of  observation, 

also  Holyoke  v.  Raskins,  5  Pick.  26;  Smith  however,  that  the  clause  in  regard  to  obliga- 

T.  Morrison,  22  Pick.  431.  tion  of  contracts  does  not  appear  to  have  been 

f  Bank  of   State  of  Alabama  v.  Dalton,  9  discussed. 


636  RECORDING    ACTS. 

cell  or  AVal  worth  held  that  it  could  not  be  construed  retrospective- 
ly ;  that  if  it  were,  it  would  destroy  or  materially  impair  a  vested 
right  under  a  previous  contract,  and  be  inoperative  and  void. 
On  appeal,  the  decree  was  affirmed.  Mr.  Senator  Verplanck,  in 
delivering  the  decision  of  the  Court  of  Errors,  went  further,  and 
said  that,  even  if  prospective,  the  act  was  void  as  to  all  previ- 
ously executed  deeds,  as  impairing  the  obligation  of  contracts ; 
that  the  effect  of  the  statute  would  be  to  enact  that  valid  contracts 
should  be  held  invalid,  unless  a  further  legal  sanction  were  added ; 
and  that  thus  the  contract  was  impaired.* 

But  this  does  not  seem  to  be  the  opinion  of  the  Supreme 
Court  of  the  United  States.     In  March,  1797,  the  Legislature 

*  /  O 

of  New  York  passed  an  act  to  settle  disputes  concerning  titles 
to  land  in  the  county  of  Onondaga,  in  that  State,  by  which  it 
was  enacted  that  commissioners  should  be  appointed  to  hear 
and  determine  all  disputes  in  regard  to  land  titles  in  that  coun- 
ty ;  that  their  decision  or  award  should  be  final  and  conclusive, 
unless  the  parties  deeming  themselves  aggrieved  should  file  a 
dissent  within  two  years,  and  within  three  years  bring  suit  in 
the  ordinary  courts  of  the  State.  A  controversy  arose  as  to  lands 
in  this  county,  granted  under  letters  patent  by  the  State  of  New 
York,  in  1790,  to  John  Cornelius — one  party  claiming  under  a 
deed  from  the  original  patentee,  dated  the  17th  of  January, 
1784,  and  recorded  on  the  25th  of  April,  1795  ;  the  other  party 
claiming  under  a  deed  dated  the  23d  June,  1784,  and  recorded 
the  3d  of  April,  1795.  The  commissioners,  in  December,  1799, 
decided  in  favor  of  the  second  deed,  which,  as  it  appears,  was 
subsequent  in  point  of  date,  but  prior  in  point  of  record.  No 
dissent  was  filed ;  and  suit  was  brought  by  the  heir  of  the 
grantee  in  the  first  deed,  in  May,  1825.  It  was  contended  for 
the  plaintiff  that  the  patent  from  the  State  created  a  contract 
with  the  grantee,  his  heirs  and  assigns,  that  they  should  enjoy 
the  land  therein  granted  free  from  any  legislative  regulations  to 
be  made  in  violation  of  the  State  Constitution  ;  that  the  act  in 
question  did  violate  some  of  the  provisions  of  that  Constitution; 
that  it  consequently  violated  the  obligation  of  a  contract ;  and 
that  the  award  of  the  commissioners  was  a  nullity.  But  the 

*  Varick  v.  Briggs,  6  Paige,  332;  Varick's  Exrs.  v.  Briggs,  22  Wend.  546. 


CHANGE  OF  CONSTITUTIONS.  G37 

Supreme  Court  of  the  United  States  held  otherwise.  They 
said  that  the  patent  contained  no  covenant  to  do,  or  not  to  do, 
any  further  act  in  relation  to  the  land,  and  they  could  not 
create  one  by  implication ;  they  said  that  the  State  had  not, 
by  the  act,  impaired  the  force  of  the  grant ;  that  it  did  not 
attempt  to  take  the  land  from  the  assigns  of  the  original 
patentee,  and  give  it  to  one  not  claiming  under  him,  nor  did  the 
award  produce  that  effect ;  and  they  proceeded  to  hold  this 
language : 

Presuming  that  the  laws  of  New  York  authorized  a  soldier  to  convey  his 
bounty  land  before  recovering  a  patent,  and  that,  at  the  date  of  the  deeds,  there 
was  no  law  compelling  the  grantors  to  record  them,  they  would  take  priority 
from  their  date.  This  is  the  legal  result  of  the  deeds ;  but  there  is  no  contract 
on  the  part  of  the  State  that  the  priority  of  title  shall  depend  solely  on  the 
principles  of  the  common  law,  or  that  the  State  shall  pass  no  law  imposing  on 
a  grantee  the  performance  of  acts  which  were  not  necessary  to  the  legal  opera- 
tion of  his  deed  at  the  time  it  was  delivered.  It  is  within  the  undoubted  power 
of  State  Legislatures  to  pass  recording  acts,  by  which  the  elder  grantee  shall 
be  postponed  to  a  younger,  if  the  prior  deed  is  not  recorded  within  the  limited 
time ;  and  the  power  is  the  same,  whether  the  deed  is  dated  before  or  after  the 
passage  of  the  recording  act.  Though  the  effect  of  such  a  law  is  to  render  the 
prior  deed  fraudulent  and  void  against  a  subsequent  purchaser,  it  is  not  a  law 
impairing  the  obligation  of  contracts.  Such,  too,  is  the  power  to  pass  acts  of 
limitations,  and  their  effect.  Reasons  of  sound  policy  have  led  to  the  general 
adoption  of  laws  of  both  descriptions,  and  their  validity  cannot  be  questioned. 
The  time  and  manner  of  their  operation,  the  exceptions  to  them,  and  the  acts 
from  which  the  time  limited  shall  begin  to  run,  will  generally  depend  on  the 
sound  discretion  of  the  Legislature,  according  to  the  nature  of  the  title,  the 
situation  of  the  country,  and  the  emergency  which  leads  to  their  enactment. 
Cases  may  occur  where  the  provisions  of  a  law  on  those  subjects  may  be  so  un- 
reasonable as  to  amount  to  a  denial  of  a  right  and  call  for  the  interposition  of  the 
court ;  but  the  present  is  not  one.* 

It  results  from  the  general  nature  of  the  Federal  Govern- 
ment, and  its  supremacy  over  the  States  within  its  legitimate 
sphere,  that  a  contract  can  no  more  be  impaired  by  the  change 
of  a  State  Constitution  than  by  a  State  law.  In  1845,  the  State 
of  Ohio  had  chartered  a  bank,  and  stipulated  the  amount  of 
taxes  payable.  In  1851,  the  people  of  that  State  adopted  a 
new  Constitution,  declaring  a  new  mode  by  which  taxes  therein 

*  Jackson  v.  Lamphtre,  3  Peters'  Rep.  p.  289. 


G38  EMINENT   DOMAIN. 

be  levied  on  banks ;  and,  in  1852,  the  Legislature  passed  an 
act,  in  conformity  to  that  Constitution,  levying  taxes  on  the 
bank  to  a  greater  amount  than  as  stipulated  in  the  act  of  1845, 
and  on  a  different  principle.  It  was  held,  that  the  act  of  1852 
was  void  as  impairing  the  obligation  of  contracts ;  that  it 
derived  no  validity  from  the  fact  of  being  in  conformity  with 
the  State  Constitution  of  1851.* 

We  are  still  to  consider  the  effect  of  the  Constitutional 
clause  with  reference  to  the  right  of  eminent  domain.  The  im- 
portant question,  whether  the  clause  in  regard  to  the  inviolabil- 
ity of  contracts  places  State  charters  beyond  the  reach  of  the 
exercise  of  the  sovereign  control  over  all  property  with  refer- 
ence to  public  convenience  and  necessity,  first  came  before  the 
Supreme  Court  in  a  case  where  a  bridge,  held  by  an  incor- 
porated company  under  a  charter  from  the  State  of  Vermont, 
was  occupied  and  taken  as  part  of  a  public  road, .  under  a  law 
of  that  State ;  the  court  held  that  the  act  was  not  unconstitu- 
tional ;  that  the  charter  was  a  contract,  but,  like  all  other  prop- 
erty, held  by  tenure  from  the  State,  and,  also  like  all  other 
property,  held  subject  to  the  right  of  eminent  domain  ;  and  that 
no  distinction  could  be  drawn  between  the  franchises  of  a  cor- 
poration and  property  held  by  an  individual.f  The  doctrine 

*  Dodge  v.  Woolsey,    18   Howard,    331;  sovereign    community    there   inheres   neces- 

and,  also,  State  Bank- of  Ohio  v.  Knoop,  16  sarily  the  right  and  duty  of  guarding  its  own 

Howard,  369.     See  the  former  case,  also,  for  existence,  and  of  protecting  and   promoting 

one  of  the  most  recent  cases  expounding  the  the  interests  and  welfare  of  the  commuuity  at 

rights  and  duties  of  the  Supreme  Court  of  the  large.     This  power  and  this  duty  are  to  be 

United  States,  as  an  ultimate  tribunal  to  de-  exerted  not  only  in  the  highest  acts  of  sov- 

termine  whether  laws  enacted  by  Congress,  ereignty,   and  in   the   external   relations    of 

or  by  State  Legislatures,  and  the  decisions  of  governments;  they  reach   and   comprehend, 

State  courts,  are  in  conflict  with  the  Consti-  likewise,  the  interior  polity  and  relations  of 

tution  of  the  United  States.  social  life,  which  should  be   regulated  with 

f  West  River  Bridge  Co.  v.  Dix  et  al.  6  reference  to  the  advantage  of  the  whole 
How.  p.  507,  by  Daniels,  J.  See,  in  this  case,  society.  This  power,  denominated  the  eminent 
Mr.  Justice  Woodbury's  opinion.  It  contains  domain  of  the  State,  is,  as  its  name  imports, 
the  suggestion  of  some  important — if  practi-  paramount  to  all  private  rights  vested  under 
cable — qualifications  in  regard  to  the  exercise  the  Government ;  and  these  last  are,  by  nec- 
of  the  power  of  eminent  domain.  He  says,  p.  essary  implication,  held  in  subordination  to 
541,  in  regard  to  the  comparative  protection  this  power,  and  must  yield,  in  every  instance 
of  private  rights  here  and  in  England,  "  Not-  to  its  proper  exercise."  Page  532. 
withstanding  the  theoretical  omnipotence  of  The  three  cases — of  the  Dartmouth  Col- 
Parliament,  private  rights  and  contracts  have  leije,  declaring  State  charters  to  be  contracts 
bc.en,  in  these  particulars  about  compensation  within  the  protection  of  the  Constitution  ;  of 
and  necessity  for  public  use,  as  much  respected  the  Charles  River  Bridge,  declaring  the  prin- 
in  England  as  here."  Vide  ante,  p.  462,  in  note,  ciples  of  interpretation  applicable  to  such 

The  definition  of  the  power  of  eminent  acts ;  and,  finally,  of  the  West  River  Bridge, 

domain   given   by    the    court,   substantially  declaring  corporate  franchises  to  be  subject 

agrees  with  that  which   I   have   suggested,  to   the   power   of    eminent   domain — are   all 

ante,  pp.  424  aud  434.     "  In  every  political  cases  of  extreme  interest,  and  cannot  be  too 


RETROSPECTIVE  LEGISLATION.  639 

has  been  since  affirmed ;  and,  in  a  recent  case,  it  was  again  de- 
cided that  the  grant  of  a  franchise  is  of  no  higher  order,  and  con- 
fers no  more  sacred  title,  than  a  grant  of  land  to  an  individual  ; 
and,  when  the  public  necessities  require  it,  the  one  as  well  as 
the  other  may  be  taken  for  public  purposes  on  making  suitable 
compensation  ;  nor  does  such  an  exercise  of  the  right  of  general 
domain  interfere  with  the  inviolability  of  contracts.* 

This  important  rule  has  been  repeatedly  laid  down  also  in 
the  State  courts.  From  the  fact  that  a  franchise  is  property,  it 
necessarily  results  that  any  contract  in  a  charter  may  be  im- 
paired provided  compensation  is  secured.f  In  Massachusetts, 
it  has  been  decided  that  an  act  of  the  Legislature,  in  the  exer- 

O  i 

cise  of  the  right  of  eminent  domain,  appropriating  to  public 
use,  on  payment  of  a  full  equivalent,  property  or  rights  in  the 
nature  of  property  granted  by  the  State  to  individuals,  is  not 
a  law  impairing  the  obligation  of  contracts  within  the  Consti- 
tution of  the  United  States.  And  it  was  intimated  that  the 
power  would  extend  to  take  the  entire  franchises  of  a  corpora- 
tion. J 

Before  quitting  this  branch  of  our  subject,  it  may  be  well  to 
notice  some  cases  of  alleged  infringement  of  vested  rights,  where 
the  constitutional  objection  has  been  taken,  but  where  it  has 
not  been  sustained. 

By  the  original  statute  law  of  Connecticut,  to  render  a  mar- 
riage valid  it  was  necessary  that  it  should  be  solemnized  by  a 
clergyman  "  ordained  and  settled  in  the  work  of  the  ministry  ;" 
and  all  marriages  not  so  solemnized  were  void.  Difficulties 
arising  under  the  act,  another  statute  was  passed,  in  1820,  de- 
claring that  all  marriages  which  had  theretofore  been  performed 
and  celebrated  by  a  minister  authorized  to  celebrate  marriages 

often  consulted  as  fixing  some  of  the  most  declared.  The  Enfield  Toll  Bridge  Co.  v.  The 

important  landmarks  of  legislative  power  and  Hartfcrd  and  N.  H.  R.  R.  17  Conn.  40. 

providing  some  of  the  most  valuable  guaran-  \  The  Boston  Water-Power   Co.   v.    The 

ties  of  private  right.  Boston  and  Worcester  R.  R.  Co.  23  Pick.  361. 

*  The  Richmond  R.  R.  Co.  v.  The  Louisa  The  general  doctrine  of  the  Charles  River 

R.  R.  Co.  13  Howard,  82.  Bridge  Case,  that  any  ambiguity  in  the  terms 

f  Piscataqua  Bridge  v.  1ST.  H.  Bridge,  7N.  of  the  contract  must  operate  against  the  cor- 

H.   65.      The   principle    of   the    Piscataqua  poration  and  in  favor  of  the  public,  and  that 

Bridge  Case  is  affirmed  in  Barber  v.  Andover,  the  corporation  can  claim  nothing  but  what 

8  N.  H.  398;  and  in  Backus  v.  Lebanon,  11  is  clearly  given  by  the  act,  is  affirmed  and 

N.  H.  19,  the  power  of  the  State,  by  virtue  of  applied  in  the  Richmond  <fcc.  R.  R.  Co.  v. 

its  eminent  domain,  over  corporations,  even  The  Louisa  R.  R.  Co.  13  How.  81. 
to  the  extent  of  taking  their  franchises,  was 


640 


RETROSPECTIVE    LEGISLATION. 


according  to  the  forms  and  usages  of  any  religious  society  or 
denomination,  should  be  deemed  good  and  valid  to  all  intents 
and  purposes  whatever.  A  marriage  having  been  solemnized, 
in  1805,  by  a  clergyman  ordained  but  not  settled  within  the 
prior  law,  its  validity  came  up,  on  a  question  of  pauper  settle- 
ment, in  1821 ;  and  it  was  held  that  the  act  of  1820  was  valid, 
and  that,  though  the  marriage  was  void  when  solemnized,  the 
subsequent  statute  rendered  it  good  ;  Hosmer,  J.,  said  there  was 
no  pretense  that  it  was  a  law  which  impaired  the  obligation  of 
contracts,  and  that  the  Legislature  had  the  power  to  pass  re- 
trospective laws  to  accomplish  just  and  proper  ends.* 


*  He  said,  "  The  interposition  of  the 
Legislature  to  pass  retrospective  laws  pro- 
motive  of  justice  and  the  general  good,  is 
familiar.  The  judgments  of  courts,  when  by 
accident  a  term  has  fallen  through,  have 
been  established ;  the  doings  of  a  committee 
and  conservator,  not  strictly  legal,  have  been 
confirmed ;  and  other  laws  have  been  passed, 
all  affecting  vested  rights  ;  but.  being  incon- 
trovertibly  just,  no  disapprobation  has  ever 
been  expressed. 

"  In  result,  I  feel  myself  authorized  to 
assert  that  the  question,  where  no  constitu- 
tional objection  exists,  whether  the  judiciary 
may  declare  a  retrospective  law  operating  on 
vested  rights  to  he  void,  is  undetermined ; 
that  men  of  profound  learning  and  exalted 
talents  have  greatly  differed  on  the  subject ; 
and  that  it  is  an  r.  quiry  beset  with  difficulty. 

"  With  those  judges  who  assert  the  omnip- 
otence of  the  Legislature  in  all  cases  where 
the  Constitution  has  not  interposed  an  ex- 
plicit restraint,  I  cannot  agree.  Should  there 
exist — what  I  know  is  not  only  an  incredible 
supposition,  but  a  most  remote  improbability 
— a  case  of  the  direct  infraction  of  vested 
rights  too  palpable  to  be  questioned  and  too 
unjust  to  admit  of  vindication,  I  could  not 
avoid  considering  it  as  a  violation  of  the 
social  compact  and  within  the  control  of  the 
judiciary.  If,  for  example,  a  law  were  made, 
without  any  cause,  to  deprive  a  person  of  his 
property,  or  to  subject  him  to  imprisonment, 
who  would  not  question  its  legality,  and  who 
would  aid  in  carrying  it  into  effect? 

"  On  the  other  hand,  I  cannot  harmonize 
with  those  who  deny  the  power  of  the  Legis- 
lature to  make  laws,  in  any  case,  which,  with 
entire  justice,  operate  on  antecedent  legal 
rights.  A  retrospective  law  may  be  just  and 
reasonable ;  and  the  right  of  the  Legislature 
to  enact  one  of  this  description  I  am  not 
speculatist  enough  to  question.  I  believe  no 
person  will  deny  that  the  exercise  of  legisla- 
tive authority,  merely,  and  without  further 
consequences,  to  confirm  marriages  not  duly 
celebrated,  is  valid,  although  clearly  retro- 


spective and  manifestly  operating  on  the 
rights  of  individuals.  And  as  every  law  in- 
trinsically implies  an  opinion  of  the  Legisla- 
ture that  they  had  authority  to  pass  it,  and 
that  it  is  just  and  reasonable  on  all  occasions 
that  may  arise,  it  is  proper  to  demand  that 
the  supposed  unjust  violation  of  legal  rights 
by  statute  should  be  established  with  great 
clearness  and  certainty.  If  a  judge  of  the 
Supreme  Court  of  the  United  States  was 
authorized  in  the  assertion  (Calder  et  ux.  v. 
Bull  et  ux.  3  Dallas,  386,  395)  that  he  would 
not  decide  any  law  to  be  void  except  in  a 
very  clear  case,  with  equal  propriety  may 
other  judges  adopt  the  same  resolution  in 
respect  of  laws  which  cannot  be  brought  to 
the  definite  test  of  a  written  Constitution, 
but  which,  as  violations  of  the  social  compact, 
are  claimed  to  be  unwarrantable. 

"The  act  of  May,  1820,  was  intended  to 
quiet  controversy  and  promote  the  public 
tranquillity.  Many  marriages  had  been  cele- 
brated, as  was  believed,  according  to  the 
prescriptions  of  the  statute.  On  a  close  in- 
vestigation of  the  subject,  under  the  prompt- 
ing scrutiny  of  interest,  il  was  made  to  ap- 
pear that  there  had  been  an  honest  miscon- 
struction of  the  law ;  that  many  unions  which 
were  considered  as  matrimonial  were  really 
meretricious ;  and  that  the  settlement  of  chil- 
dren in  great  numbers  was  not  in  the  towns 
of  which  their  fathers  were  inhabitants,  but 
in  different  places.  To  furnish  a  remedy  co- 
extensive with  the  mischief,  the  Legislature 
have  passed  an  act  confirming  the  matri- 
monial engagements  supposed  to  have  been 
formed,  and  giving  to  them  validity,  as  if  the 
existing  law  had  precisely  been  observed. 
The  act  intrinsically  imports,  that  the  Legis- 
lature considered  the  law  of  May,  1820,  to  be 
conformable  to  justice  and  within  the  sphere 
of  their  authority.  It  was  no  violation  of 
the  Constitution ;  it  was  not  a  novelty ;  such 
exercises  of  power  have  been  frequent  and 
the  subject  of  universal  acquiescence,  and  no 
injustice  can  arise  from  having  given  legal 
efficacy  to  voluntary  engagements  and  from 


RETROSPECTIVE   LEGISLATION.  641 

An  execution  was  levied  on  land  in  the  State  of  Connecti- 
cut, in  December,  1 823.  The  law,  as  it  then  stood,  required 
land  taken  on  execution  to  be  appraised  by  three  freeholders  of 
the  town ;  and  if  the  parties  neglected,  or  could  not  agree,  the 
appraisers  were  to  be  appointed  by  any  justice  of  the  town. 
In  the  case  in  question,  the  sheriff  omitted  to  certify,  in  his 
return,  the  fact  that  the  justice  who  made  the  appointment  re- 
sided in  the  town ;  and,  as  the  return  to  the  levy  was  the  only 
evidence  of  title,  the  levy  was  fatally  defective  and  void,  and 
the  plaintiff  acquired  no  title.  These  facts  appearing  in  the 
inferior  court,  pending  the  application  to  the  court  above  for  a 
new  trial,  a  law  was  passed,  in  1825,  to  ratify  and  establish 
executions  thus  defectively  executed  or  returned.  It  was  ob- 
jected that  the  act  was  unconstitutional,  because  it  impaired 
the  obligation  of  contracts ;  but  it  was  said  that,  between  the 
parties,  there  never  was  any  contract  relative  to  the  land  ;  that 
the  levy  of  the  execution  was  altogether  in  invitum,  and  that 
the  objection  pointed  at  an  object  which  had  no  existence ;  and 
the  statute  was  held  valid  on  the  ground  that,  although  retro- 
spective, it  was  a  just  and  reasonable  law.* 

Another  case  has  presented  itself,  in  the  same  State,  in  rela- 
tion to  an  act,  passed  in  1826,  declaring  that  no  levy  of  an 

accompanying  them  with  the  consequences  and  unobserved  alterations  at  the  late  revision 
which  they  always  impart.  The  judiciary,  of  the  law  relative  to  the  levy  of  executions, 
to  declare  the  law  in  question  void,  must  first  The  wide-spread  mischief  to  officers  who  had 
recognize  the  principle  that  every  retrospec-  faithfully  performed  their  duty  according  to 
tive  act,  however  just  and  wise,  is  of  no  valid-  their  best  knowledge,  and  the  rights  of  un- 
ity; and  that,  for  the  correction  of  every  merous  creditors  whose  debts  were  in  jcop- 
deviation  of  the  Legislature  from  absolute  ardy,  furnished  strong  political  and  equitable 
right,  theirs  is  the  supremacy.  Impressed  reasons  for  the  interposition  of  the  Legisla- 
with  the  opinion  that  this  is  beyond  the  con-  ture.  On  the  other  hand,  to  the  mistaken  levy 
fines  of  judicial  authority,  I  am  satisfied  with  of  the  execution  the  debtors  had  no  reasonable 
the  decision  at  the  circuit,  and  would  not  ad-  objection ;  and  creditors  and  purchasers,  al- 
vise  a  new  trial."  Goshen  v.  Stonington,  4  ways  acting  with  full  information  derived 
Conn.  R.  p.  226.  from  the  records  of  land  titles,  could  not  just- 
*  The  court  said,  "  In  Goshen  v.  Stoning-  ly  complain  that  they  were  not  permitted  to 
ton,  4  Conn.  Rep.  209,  it  was  adjudged  by  wrench  from  those  who  had  levied  their  exe- 
this  court  that  a  retrospective  law  impairing  cations  defectively  the  property  to  which  they 
vested  rights,  if  it  be  not  clearly  unjuxt,  is  had,  at  least,  an  equitable  title.  The  real 
entitled  to  obedience ;  and  that  to  disregard  question  to  be  determined  is  merely  this : 
an  act  of  the  Legislature,  unless  it  be  inequi-  Whether  every  retrospective  law  acting  on 
table,  oppressive,  and  in  violation  of  the  social  vested  rights  is  invalid.  If  it  is  not,  there 
compact,  is  not  within  the  confines  of  judicial  are  few  cases  the  equity  of  which  more  iinpe- 
authority.  I  discern  nothing  of  this  charac-  riously  demands  legislative  interposition  than 
ter  in  tire  law  under  consideration.  It  is  the  those  within  the  purview  of  the  late  law." 
ordinary  exercise  of  legislative  authority,  in,  Mather  v.  Chapman,  6  Conn.  Rep.  58 ;  s.  p. 
similar  cases  sometimes  requisite  to  prevent  Norton  v.  Pettibone,  7  Conn.  319;  and  Booth 
great  injustice  and  public  inconvenience.  In  v.  Booth,  7  Conn.  351. 
the  case  before  us,  the  error  arose  from  slight 
41 


642  RETROSPECTIVE   LEGISLATION. 

execution  theretofore  made  should  be  deemed  void  by  reason 
of  defects  which,  in  the  then  state  of  the  laws,  were  fatal.  In 
a  case  where  a  levy  had  been  made,  an  action  brought  by  the 
execution  creditor,  trial  had,  and  the  levy  held  bad  at  the  cir- 
cuit before  the  confirmatory  act  passed,  the  Supreme  Court  held 
that  the  act  was  valid,  and  that  it  made  the  levy  good — that 
though  retrospective,  it  was  valid  because  just.* 

We  have  thus  terminated  our  consideration  of  this  import- 
ant clause  of  the  Constitution.  Its  value  has  certainly  been 
very  great ;  but  if  we  observe  its  practical  operation  in  con- 
nection with  that  other  fundamental  guaranty  of  our  rights, 
that  private  property  shall  not  be  taken  without  compensation, 
some  deductions  will  perhaps  have  to  be  made  from  the  com- 
mendations which  we  bestow  on  our  system  of  constitutional 
law.  In  the  one  case,  by  a  very  rigid  and  technical  interpreta- 
tion of  the  word  to  take,  and  in  the  other  by  a  most  subtle  and 
refined  distinction  between  the  contract  and  its  remedy,  it  is 
difficult  to  deny  that  the  protection  intended  to  be  given  by 
both  these  provisions  has  been  seriously  diminished. 

In  truth,  the  very  protection  sought  to  be  afforded  to 
private  rights  by  our  system  of  constitutional  limitations  in 
some  sense  diminishes  their  security ;  the  interests  that  else- 
where are  guarded  by  a  general  sense  of  the  importance  of  re- 
fraining from  all  interference  with  individual  rights,  here  seek 
the  protection  of  precise  texts  of  written  law.  It  is  not  a  pro- 
tection of  principle,  so  much  as  of  authority ;  and  the  exercise 

*  Hosmer,  C.  J.,  said,  "Every  act  of  the  of  an  individual,  must  be  considered  as  of  no 

Legislature  intrinsically  implies  an    opinion  validity.     And  thus,  in  cases  the  most  equi- 

that  the  legislative  body  had  a  right  to  enact  table  and  salutary,  the  judiciary  must  deny  the 

it.     And  the  judiciary  will  discover  sufficient  legislative  right  to  pass  a  law  oppressive  to 

promptitude  if  it  determine  a  law  to  be  in-  no  one  and  promotive  of  entire  justice,  and 

valid  that  operates  by  retrospection  unjustly  this  upon  the  authority  of  general  principles, 

on  person  or  property.     The  principle  steers  I  am  not  speculatist  enough  to  yield  my  sanc- 

a  correct  medium,  admitting  the  sovereignty  tion  to  this  course  of  proceeding.     Beach  v. 

of  the  Legislature  to  do  justice  by  an  act  un-  Walker,  6  Conn.  198. 

questioned  by  the  court  of  law,  while  it  equal-  "  Under  the  power  to  maintain  an  army 
ly  repels  the  supposed  uncontrollable  omnipo-  and  navy,  Congress  may  authorize  infants  to 
tence  of  the  same  body  to  require  the  ob-  make  a  valid  contract  of  enlistment;  and  an 
servance  of  an  unjust  law  in  subversion  of  indentured  infant,  bound  out  by  the  managers 
fundamental  rights,  and  in  opposition  to  the  of  an  alms-house  as  an  apprentice,  may  enlist 
social  compact.  The  question  is  not  free  from  with  the  consent  of  the  master,  even  although 
difficulty  ;  but  unless  the  doctrine  sanctioned  the  consent  of  the  manager  is  not  obtained." 
by  the  court  be  embraced,  this  extreme  would  Commonwealth  v.  Murray,  4  Binn.  487  ;  Com- 
be resorted  to,  that  every  retrospective  law,  monwealth  v.  Barker,  5  Binn.  423. 
however  just  or  wise,  affecting  the  property 


VESTED   RIGHTS.  G43 

of  authority  always,  and  eminently  with  us,  excites  jealousy 
and  provokes  resistance.  But  this  aspect  of  the  case  opens  a 
wide  field  for  discussion,  involving  the  peculiar  character  of  our 
complex  system  of  government,  and  the  wants  and  necessities 
of  a  new  country. 

Vested Hights*  (a) — Having  thus  surveyed  the  great  field 

*  This  phrase  is  one  of  most  frequent  oc-  those  titles  had  existed  and  been  preserved  to 

currence.     In  a  case  in  Maine,  it  was  said,  them  in  safety."     Proprietors  Ken  Purchase 

"  The  act  is  unconstitutional  and   cannot  be  v.  Laboree,  2  Greenleaf,  295. 

carried  into  effect,   because    such  operation  "  It  cannot  be  denied  that  the  Legislature 

would  impair  and    destroy  vested  rights,  and  possesses  the  power  to  take  away  by  statute 

deprive  the  owners  of  real  estate  and  of  their  what   was   given    by   statuie,    except  vested 

titles  thereto,  by  changing  the  principles  and  rights."    The  People  v.  Livingston,  per  Sav- 

the  nature  of  those  facts  by  means  of  which  age,  C.  J.,  6  Wend.  531. 

(a)  Vested  Rights. — This  discussion  properly  belongs  under  the  head  of  "  due  proc- 
ess of  law." 

Interference  with  vested  rights  by  curative  statutes  or  by  any  other  legislative  act 
is 'prohibited  by  the  constitutional  guaranty  of  due  process  of  law,  unless,  perhaps, 
the  interests  of  society  may,  in  some  extreme  and  exceptional  cases,  make  such  inter- 
ference necessary. 

In  accordance  with  this  principle,  it  has  been  decided  that  a  right  of  entry  once 
vested  cannot  be  divested  by  the  Legislature — e.  <?.,  a  right  of  entry  for  forfeiture, 
which  has  vested  in  heirs,  cannot  be  transferred  to  devisees  by  a  change  in  the  law 
as  to  what  may  pass  by  will.  Southard  v.  Central  R.  R.  2  Dutch.  13.  And  where  a 
legacy  was  given  to  an  unincorporated  society,  and  was  therefore  void,  and  the  right 
of  the  next  of  kin  had  thus  become  fixed,  it  was  held  that  the  Legislature  could  not 
provide  that  the  society,  upon  being  incorporated,  should  take  the  legacy.  State  v. 
Warren,  28  Md.  328. 

The  right  of  a  married  woman  to  dower  vests  on  the  death  of  her  husband,  and 
cannot  be  divested  by  subsequent  legislation.  Lucas  v.  Sawyer,  17  Iowa,  517;  Burke 
v.  Barren,  8  Clarke  (la.)  132. 

The  husband's  right  to  reduce  wife's  choses  in  action  to  possession,  when  vested, 
cannot  be  taken  away  by  statute ;  and  it  makes  no  difference  that  the  chose  in  action 
is  a  contingent  remainder  in  personal  property,  and  the  contingency  does  not  happen 
until  after  the  passage  of  the  statute.  Dunn's  Adm'rs  v.  Sargent,  101  Mass.  336.  A 
bountv  cannot  be  diminished  so  as  to  affect  those  who  have  already  earned  it  under 
the  terms  of  the  act.  People  v.  State  Auditors,  9  Mich.  327.  A  statute  prohibiting 
payment  of  a  State  officer  for  services  already  performed  is  void,  in  Missouri,  where 
the  Constitution  forbids  retrospective  legislation.  State  v.  Auditor,  33  Mo  287. 
And  where  the  holder  of  county  scrip  had  presented  the  same  for  payment,  there 
being  money  in  the  treasury  applicable  to  his  claim  it  was  held  that  subsequent 
legislation  could  not  take  away  his  right.  La  Forge  v.  Magee,  6  Cal.  650.  The  right 
of  action  against  a  town  of  settlement  for  supplies  furnished  to  a  pauper,  cannot  be 
divested  by  a  change  of  the  settlement  laws.  Pembroke  v.  Epsom,  44  N.  H.  113. 
As  to  effect  of  repeal  upon  vested  rights  to  payment,  see  Streubel  v.  Milwaukee  &c. 
R.  R.  12  Wise.  67.  The  Legislature,  it  has  been  held  in  some  cases,  cannot  take  away 
the  property  of  a  municipal  corporation,  but  may  direct  how  it  shall  be  used  for  the 
benefit  of  such  corporation.  State  v.  St.  Louis  County  Court,  34  Mo.  546.  But  can- 


644  VESTED   RIGHTS. 

of  constitutional  law,  and  considered  the  operation  and  effect 
of  the  most  prominent  clauses  in  the  fundamental  law  of  the 

not,  it  seems,  divert  county  or  municipal  taxes  levied  for  one  purpose  to  a  different 
one.  Nashville  v.  Towns,  5  Sneed,  186.  When  the  right  to  plead  the  statute  of 
limitations  has  become  complete,  it  cannot  be  taken  away.  Dillon  v.  Dougherty,  2 
Grant's  Gas.  (Penn.)  99  ;  Girdner  v.  Stephens,  1  Heisk.  (Tenn.)  280.  And  where  it  is 
provided  by  statute  that  payments  of  usurious  interest  shall  operate  as  payments  on 
account  of  principal,  no  change  in  the  usury  laws  can  revive  so  much  of  the  debt  as 
has  been  thus  extinguished.  Hunter  v.  Hatch,  45  111.  178. 

*B*ut  there  is  no  vested  interest  in  a  mere  penalty  imposed  by  the  usury  laws,  as, 
for  instance,  three-fold  interest,  Parmelee  v.  Lawrence,  44  111.  405  ;  s.  c.  48  111.  331 ; 
nor  in  statutory  exemptions,  Bull  v.  Conroe,  13  Wise.  233  ;  nor  in  statutory  presump- 
tions. Hence  the  grantee  in  a  tax  deed  cannot  complain  of  a  repeal  of  legislative 
presumptions  in  favor  of  the  regularity  of  the  proceeding.  Hickox  v.  Tallman,  38 
J3arb.  608.  No  vested  right  is  impaired  by  giving  a  more  effective  remedy  on  past 
judgments,  Porter  v.  Mariner,  50  Mo.  364  ;  nor,  it  seems,  by  taking  away  the  lien  of 
-a  judgment  before  rights  have  vested,  Watson  v.  N.  Y.  Cent.  E.  R.  47  N.  Y.  157. 
But  a  right  of  action  cannot  be  created  between  persons  where  there  was  none  be- 
fore. Rogers  v.  Leftwich,  2  Heisk.  (Tenn.)  480.  And  so,  it  seems,  a  lien  cannot  be 
created  where  there  was  no  privity.  Jacobs  v.  Knapp,  50  N.  H.  71.  Aliter,  as  to 
future  contracts,  Blauvelt  v.  Woodworth,  31  N.  Y.  285.  Nor  can  the  right  to  darn- 
.  ages  for  injury  be  limited  retrospectively  as  to  amount.  Kay  v.  Penn.  R.  R.  65  Penn. 
,8t.  269. 

Notwithstanding  the  doctrine  as  to  the  inviolability  of  vested  rights,  illustrated 
in  the  foregoing  cases,  a  certain  amount  of  disturbance  of  existing  arrangements  is 
rendered  necessary  by  the  changing  wants  of  society,  and  this  disturbance  seems 
sometimes  to  trench  upon  the  vested  rights  which  the  Constitution  protects.     To 
illustrate  :  Modes  of  alienation  of  property  may  be  changed  and  restrictions  placed 
upon  them,  Williamson  v.  Williamson,  18  B.  Mon.  329  ;  Maclay  v.  Love,  25  Cat  367 ; 
Warfield  v.  Ravesies,  38  Ala.  518,  though  the  Constitution  declares  that  all  lands 
are  ''  allodial,"  Barker  v.  Dayton,  28  Wise.  367  ;  the  power  to  devise  may  be  changed 
or  restricted,  Sturgis  v.  Ewing,  18  111.  176  ;  and  though  the  will  is  executed  before 
the  passage  of  the  amendatory  law,  the  party  not  dying  until  after,  Baptist  &c.  Union 
v.  Peck,  10  Mich.  341,  346  ;  a  right  to  waive  the  provisions  of  a  will  may  be  given 
retrospectively,  Hinton  v.  Hinton,  Phill.  (N.  C.)  L.  410.     The  Legislature  may  au- 
thorize the  surrender  of  a  collateral  power  of  appointment,  Norris  v.  Thomson,  4  C. 
E.  Green,  307 ;  and  a  fee  tail  may  be  changed  to  a  fee  simple,  De  Mill  v.  Lockwood, 
3  Blatch.  C.  C.  56.     The  rights  of  parents  over  the  children  are  subject  to  legislative 
control,  there  is  no  right  of  property  in  them  ;  and  a  statute  giving  the  mother  cus- 
tody in  certain  cases  was  held  valid.     Bennet  v.  Bennet,  2  Beasley,  1 14.     The  rules 
as  to  costs  may  be  changed,  even  in  pending  suits.     Taylor  v.  Keeler,  30  Conn.  324. 
There  is  no  vested  right  in  creditors  to  receive  such  dividend  as  the  insolvent  law 
allows  them  at  the  time  of  the  assignment,  and  the  law  may  be  changed  so  as  to  make 
a  secured  creditor  prove  only  for  the  excess.    Mechanics'  B'k  Appeal,  31  Conn.  63. 
There  is  no  vested  right  in  the  remedies  given  by  the  United  States  to  persons  un- 
justly taxed,  to  recover  back  the  money  from  the  tax  collector.     Collector  v.  Hub- 
bard,  12  Wai.  1.     Burden  of  proof  may  be  changed,  Chandler  v.  Northrup,  24  Barb. 
129 ;  Usher  v.  Pride,  15  Gratt.  190 ;  and  parties  may  be  made  witnesses,  Rich  v. 


VESTED   RIGHTS.  645 

Federal  and  State  Governments,  devised  to  operate  as  checks 
on  legislative  power,  and  to  act  as  guaranties  of  private  prop- 
erty, we  are  better  prepared,  before  taking  final  leave  of  our 
subject,  to  approach  this  branch  of  it  in  detail,  and  to  form 
some  general  conclusions  as  to  the  rules  by  which  and  the  ex- 
tent to  which  private  rights  are  secured,  under  our  form  of 
government,  from  governmental  invasion — in  other  words,  to 
what  extent  vested  rights  are  protected.  This  subject,  i.  e.,  the 
protection  of  vested  rights,  as  they  are  called,  has  been  repeat- 

Flanders,  39  K  H.  304 ;  Little  v.  Gibson,  II.  505  (the  Constitution  of  New  Hamp- 
shire expressly  prohibits  retrospective  legislation) ;  and  the  right  of  appeal  may  be 
taken  away  retrospectively,  Matter  of  Palmer,  40  N.  Y.  561 ;  but  cannot  be  given  retro- 
spectively, Lancaster  v.  Barr,  25  Wise.  560. 

An  act  allowing  defendant  in  ejectment,  against  whom  judgment  is  rendered  in 
certain  cases,  to  recover  value  of  improvements,  was  held  valid  in  Pacquitte  v.  Pick- 
ness,  19  Wise.  219.  But  an  act  providing  that  improvements  made  on  land  by  person 
wrongfully  in  possession  shall  be  paid  for  by  the  owner  of  the  land,  is  invalid  as  di- 
vesting vested  rights.  Billings  v.  Hall,  7  Cal.  1 ;  Anderson  v.  Figk,  36  Cal.  625. 
And  also  a  statute  authorizing  a  general  money  judgment  for  such  improvements  is 
invalid,  Child  v.  Shower,  18  Iowa,  261 ;  but  otherwise,  if  compensation  be  made  out 
of  rents,  &c.  The  Legislature  may  authorize  recovery  for  improvements,  Saunders 
v.  Wilson,  19  Tex.  194,  the  possession  being  in  good  faith;  but  a  provision  that  be- 
fore action  to  recover  rents  and  profits,  the  value  of  improvements  must  be  tendered, 
is  unconstitutional,  Hearn  v.  Camp,  18  Tex.  545  ;  but  see  Craig  v.  Flanagan,  21  Ark. 
319,  where  a  statute  requiring  as  preliminary  to  a  suit  for  redemption  of  lands  sold 
for  taxes,  an  affidavit  of  tender  and  refusal  of  amount  of  tax  and  costs,  with  100  per 
cent,  added,  and  also  the  full  value  of  all  subsequent  improvements,  was  held  valid. 
See  Lathrop  v.  Mills,  19  Cal.  513,  where  a  statute  having  a  similar  object  was  held 
void. 

Congress  may  extend  a  patent  previously  expired,  though  the  invention  has  come 
into  public  use.  Jordan  v.  Dobson,  2  Abb.  C.  C.  398.  The  Legislature  may  waive 
an  escheat,  although  escheats  are  pledged  by  the  Constitution  to  the  school  fund. 
Matter  of  Henry  Stecknoth,  7  Nev.  223.  And  only  an  interested  party  could  com- 
plain. Ibid.  Where  a  statute  was  passed  to  subrogate  debtors  who  had  been  gar- 
nished by  the  State,  and  had  paid  their  debts  to  the  State  upon  irregular  process,  to 
the  rights  of  the  State,  held  that  it  could  not  affect  a  case  where  the  claim  had  been 
assigned  and  the  State  paid  in  full.  Johnson  v.  Johnson,  26  Ind.  441.  The  repeal 
by  the  Confederate  Congress  of  the  exemption  of  those  who  had  furnished  substi- 
tutes, was  sustained  in  Ex  parte  Tate,  39  Ala.  254 ;  Burroughs  v.  Peyton,  16  Gratt. 
470.  The  amnesty  act  was  held  void  so  far  as  it  affected  vested  rights  of  individuals 
to  recover  for  property  taken,  in  Terrill  v.  Rankin,  2  Bush  (Ky.)  453.  The  am- 
nesty clause  in  the  Missouri  Constitution  was  held  valid,  in  Clark  v.  Dick,  1  Dillon 
C.  C.  8  And  the  amnesty  act,  although  taking  away  right  of  person  to  recover  dam- 
ages for  property  seized,  &c.,  was  upheld  in  Hess  v.  Johnson,  3  W.  Va.  645  ;  and  see 
Drehman  v.  Stifle,  8  Wai.  595. 


646  VESTED   RIGHTS. 

edly  referred  to  in  the  progress  of  this  work,*  and  the  difficulty 
of  laying  d6wn  any  precise  rule  in  regard  to  them  pointed  out.f 
Its  importance,  too,  has  been  already  repeatedly  insisted  on. 
Indeed,  it  is  manifest  that  in  both  the  framework  and  the  daily 
operation  of  our  Government,  this  is  the  great  practical  object 
sought  to  be  obtained.  Some  governments  may  chiefly  seek  to 
guard  against  the  turbulence  of  the  poorer  classes ;  some  to  re- 
press the  oligarchical  insolence  of  a  privileged  class;  some  to 
prevent  the  union  of  the  powers  of  the  Church  and  of  the 
State ;  some  to  check  the  authority  of  the  sovereign.  These 
points  were  certainly  not  overlooked  by  the  founders  of  our 
Government — the  heroes  and  leaders  of  a  popular  revolution  ; 
but  it  will  hardly  be  denied  that  with  us  as  a  practical  ques- 
tion, the  legislative  power  is  the  most  formidable,  nor  that  our 
system  chiefly  aims  to  guard  the  citizen  against  the  Legislature 
— to  protect  him  against  the  power  of  a  majority  taking  the 
shape  of  unjust  law.  And  it  is  to  observed,  also,  that  the  un- 
just action  of  government  with  us  is  most  likely  to  take  the 
shape  of  attacks  upon  rights  of  property.  All  government, 
indeed,  resolves  itself  into  the  protection  of  life,  liberty,  and 
property.  Life  and  liberty,  in  our  fortunate  condition,  are, 

*  Ante,  pp.  152  and  166.  and  even  of  society  itself.  The  charters  which 
•f- In  England,  as  a  matter  of  practice,  we  call  by  distinction  great,  are  public  instru- 
vested  rights  are  very  sedulously  protected ;  ments  of  this  nature  ;  I  mean  the  charters  of 
as  a  matter  of  theory,  their  doctrine  of  Par-  King  John  and  King  Henry  the  Third.  The 
liamentary  supremacy  leaves  little  room  for  things  secured  by  these  instruments  may, 
the  judicial  discussion  of  them.  The  most  without  any  deceitful  ambiguity,  be  very  fitly 
prominent  case,  perhaps,  of  Parliamentary  called  the  chartered  rights  of  men. 
examination  of  the  question  occurs  in  the  "These  charters  have  made  the  very  name 
great  debate  on  Fox's  East  India  Bill.  Mr.  of  a  charter  dear  to  the  heart  of  every  En- 
Burke  said :  glishman.  But,  Sir,  there  may  be,  and  there 
"  The  rights  of  men,  that  is  to  say,  the  are,  charters  not  only  different  in  nature,  but 
natural  rights  of  mankind,  are  indeed  sacred  formed  011  principles  the  very  reverse  of  those 
things  ;  and  if  any  public  measure  is  proved  of  the  great  charter.  Of  this  kind  is  the  char- 
mischievously  to  affect  them,  the  objection  ter  of  the  East  India  Company.  Jdogna 
ought  to  be  fatal  to  that  measure,  even  if  no  charta  is  a  charter  to  restrain  power,  and  to 
charter  at  all  could  be  set  up  against  it.  If  destroy  monopoly.  The  East  India  charter 
these  natural  rights  are  further  affirmed  and  is  a  charter  to  establish  monopoly  and  -to 
declared  by  express  covenants ;  if  they  are  create  power.  Political  power  and  corn- 
clearly  defined  and  secured  against  chicane,  mercial  monopoly  are  not  the  rights  of  men ; 
against  power  and  authority,  by  written  in-  and  the  rights  of  them  derived  from  charters 
struments  and  positive  engagements,  they  are  it  is  fallacious  and  sophistical  to  call  '  the 
in  a  still  better  condition;  they  partake  not  chartered  rights  of  men.' 

•  only  of  the  sanctity  of  the  object  so  secured,  "  These  chartered  rights  (to  speak  of  such 

but  of  that  solemn  public  faith  itself  which  se-  charters  and  of  their  effects  in  terms  of  the 

cures  an  object  of  such  importance.  greatest  possible  moderation)  do  at  least  sus- 
"  Indeed,   this  formal   recognition   by  the  '  pend  the  natural  rights  of  mankind  at  large, 

sovereign  power,  of  an  original  right  in  the  and  in  their  very  frame  and  constitution  are 

subject,  can  never  be  subverted  but  by  root-  liable  to  fall  into  a  direct  violation  of  them." 

ing  up  the  radical  principles  of  government,  — Eurke's  Speech  on  Fox's  East  India  Bill. 


TAXATION.  G47 

however,  little  likely  to  be  injuriously  affected  by  the  action  of 
the  body  politic.  Property  is  very  differently  situated.  It  is, 
therefore,  of  the  highest  moment,  if  possible,  to  obtain  a  clear 
idea  as  to  the  nature  and  extent  of  the  protections  which  guard 
our  rights  of  property  from  attack  under  color  of  law — to  de- 
termine, in,  other  words,  what  is  a  vested  right. 

The  fundamental  guards  and  guaranties  of  this  class  are  to 
be  found  first  in  the  great  constitutional  restrictions,  whether  of 
the  Federal  or  State  charters. 

Private  property  is  not  to  be  taken  without  compensation. 

No  "law  is  to  be  passed  impairing  the  obligation  of  con- 
tracts. 

Property  is  not 'to  be  taken  without  due  process  of  law; 
and  every  individual  right  is  placed  under  the  protection  of  the 
law  of  the  land. 

In  those  States  where  they  exist,  the  clauses  intended  to  se- 
cure uniformity  of  taxation  should  be  added.  The  questions 
connected  with  taxation  are,  indeed,  every  day  becoming  of 
more  and  more  pressing  importance.  The  taxing  authority  is 
after  all  but  one  arm  of  that  tremendous  power  of  eminent  do- 
main, at  the  foot  of  which,  so  far  as  uncontrolled,  every  citizen 
lies  prostrate ;  and  the  consequences  of  the  earlier  decisions 
leaving  this  engine  in  the  hands  of  unrestrained  legislative  au- 
thority, seem  to  have  awakened  that  conservative  jealousy  of 
power  which  never  lies  long  dormant  in  the  breast  of  our 
people.  Certain  it  is,  that  the  more  recent  Constitutions  and 
the  more  recent  judicial  decisions,  show  a  disposition  not  to 
abandon  the  taxing  power  to  the  often  ill-regulated  and  despotic 
will  of  our  fluctuating  and  hasty  legislation.* 

*  In  Missouri,  while  conceding  the  uncon-  As  'to  the  difficulty  of  drawing  a  line  be- 

trolled-  power  of  taxation  to  the  Legislature,  tween  a   legitimate    exercise  of   the  taxing 

subject  only  to  the  restriction  contained  in  power,  and  the  arbitrary  seizure  of  the  prop- 

the  Constitution  of  that  State,  that  "  all  prop-  erty  of  an  individual  under  the  mask  of  this 

erty  subject  to  taxation  shall  be  taxed  in  pro-  power,  see  Cheany  v.  Hooser,  9  Ben.  Monroe, 

portion  to  its  value,"  and  conceding  also  the  389. 

right  to  delegate  the  power  to  subordinate  See  also,  on  this  point,  City  of  Covington 

agencies,  such  as  municipal  corporations,  they  v.  Southgate,  15  Ben.  Monroe  Law  and  Equity 

have  denied  the  power  arbitrarily  to  tax  the  R.  491,  where  held  that  though  the  Legisla 

property  of  one  citizen  and  give  it  to  another;  ture  has  the  power  constitutionally  to  extend 

and  on  this  ground  fcave  held  that  the  Legis-  the  limits  of  towns  and  cities,  and  include  ad- 

lature  cannot  authorize  a  municipal  corpora-  jacent  ag  ricultural  lands  without  the  consent 

tion  to  tax  for  its  own  local  purposes  land  ly-  of  the  owner,  yet  the  town  or  city  cannot  tax 

ing  beyond  the  corporation  limits.     Wells  v.  such  property  as  town  property,  and  subject 

City  of  Weston,  22  Miss.  p.  385.  it  to  the  city  burdens,  without  the  consent  of 


648  CONSTITUTIONAL   SAFEGUARDS. 

"With  this  qualification,  the  great  provisions  referred  to,  i.  e., 
compensation  for  private  property  taken  for  public  uses,  sanctity 
of  contracts,  and  law  of  the  land,  seem  to  furnish  the  principal 
guaranties  of  our  liberty  and  rights.  The  other  provisions  as 
to  trial  by  jury,  titles  of  bills,  searches  and  seizures,  constitu- 
tional majorities,  and  the  like,  which  we  have  considered,  relate 
rather  to  modes  and  details  than  to  principles.  The  above  pro- 
visions are  those  which  are  to  be  found  everywhere,  and  on 
which  chiefly,  so  far  as  written  law  goes,  our  rights  depend. 

These  three  constitutional  checks,  then,  guard  private  prop- 
erty from  the  invasions  of  the  State,  protect  contracts  fr&m  vio- 
lation under  guise  of  law,  and  finally,  insure  to  every  person 
impleaded,  attacked,  or  charged,  the  invaluable  right  of  system- 
atic procedure,  evidence,  and  judicial  trial. 

All  these  clauses  have  been  expounded,  and  in  some  cases, 
restricted  by  construction  and  explanation ;  and  the  nature  of 
those  restrictions  we  have  considered  and  discussed.  In  ad- 
dition to  these,  our  attention  has  also  been  called  to  one  other 
check  on  the  vicious  action  of  legislative  bodies,  not  derived 
from  express  provision,  but  from  the  division  of  political  power 
growing  out  of  the  general  structure  of  our  system  ;  this  is,  that 
the  Legislature  can  do  no  act  which  is  not  a  law. 

This  idea  is  sometimes  conveyed  in  the  phrase  (the  mean- 
ing of  which  we  have  elsewhere  considered),*  that  the  Legis- 
lature can  do  no  judicial  act ;  and  it  is  almost  identical  with 
the  constitutional  declaration  which  insures  to  all  persons  at- 
tacked or  charged,  the  protection  of  the  law  of  the  land. 

If,  as  we  have  seen,  by  the  right  to  the  law  of  the  land  is 
meant  the  right  to  judicial  procedure,  investigation,  and  deter- 
mination, whenever  life,  liberty,  or  property  is  attacked ;  and 
if  it  be  conceded,  as  it  must  be,  that  our  Legislatures  are  by 
our  fundamental  law  prohibited  from  doing  any  judicial  acts, — 
then  it  would  seem,  as  far  as  the  present  question  is  concerned, 
that  the  rights  of  the  citizen  are  as  perfectly  protected  by  the 
guaranty  of  the  law  of  the  land  as  they  can  be  by  a  peremp- 

the  owner,  iintil  it  shrill  be  laid  off  into  lots  property  contrary  to  the  principles  of  our  con- 

and  used  as  town  property.     This  decision  stitutional  law,  under  color  of  the  power  of 

was  made  distinctly  on  the  ground  that  the  taxation, 
act  in  question  was  an'  invasion  of  private  *  Ante,  pp.  134  and  138. 


LEGISLATIVE    POWER.  G49 

tory  distribution  of  power.  In  fact,  the  special  clause  works  a 
division  of  power.  But  these  are  rather  speculative  questions  ; 
and  the  great  idea  of  the  protection  intended  to  be  conferred 
by  our  division  of  powers  into  executive,  legislative,  and  ju- 
dicial, is  perhaps  best  expressed  by  the  proposition  just  stated, 
that  the  work  of  the  Legislature  is  to  be  confined  to  the  pas- 
sage of  laws,  as  distinguished  from  judicial  and  executive  acts. 
And  this  brings  us  to  the  precise  question  of  vested  rights ;  for 
the  prohibition,  so  far  as  it  exists,  of  retrospective  acts,  whether 
direct*  or  in  the  shape  of  repealing  statutes,f  and  the  non-in- 
terference, so  far  as  it  is  enforced,  with  vested  rights,  in  cases  - 
which  do  not  come  within  the  prohibition  of  the  positive 
clauses  in  our  Constitutions,  State  or  Federal,  in  regard  to  pri- 
vate property  and  contracts,  will  be  found  to  be  summed  up  in 
the  idea  that  the  Legislature  can  only  mdke  laws,  or  legislative 
enactments,  as  contradistinguished  from  judicial  sentences  and 
decrees. 

If  we  renounce,  as  I  think  we  must,J  the  idea  that  the 
validity  of  a  law  can  be  determined  by  the  judiciary  on  ab- 
stract notions  of  justice  and  right ;  if  we  admit,  as  we  must, 
that  the  denial  of  the  right  to  make  retrospective  laws  cannot, 
as  a  universal  proposition,  be  maintained, — then  outside  of  the 
cases  depending  on  positive  constitutional  inhibitions,  no  other 
restriction  can  'be  imposed  on  legislative  action  except  such  as 
is  derived  from  the  idea,  perhaps,  as  we  have  said,  expressed 
with  equal  clearness  in  the  guaranty  of  the  law  of  the  land, 
that  legislative  power  only  is  granted  to  it,  and  that  vested 
rights  of  property  can  only  be  interfered  with  by  it  so  far  as  is 
competent  to  be  done  by  the  enactment  of  laws.\ 

This,  however,  is  merely  a  circuitous  statement  of  the  prop- 
osition that  vested  rights  are  sacred.  Let  us,  therefore,  sum  up 

*  Page  166.  denied  the  right  of  the  Legislature  to  deter- 
•J-  Page  114.  mine  the  .ights  of  parties  to  land,  either  by 
J  Ante,  ch.  v,  p.  154,  and  p.  159.  themselves  or  commissioners.     "  If  they  at- 
|  The  47th  letter  of  the  Federalist  dis-  tempted   this,   they    clearly   were   assuming 
cusses  the  subject  of  the  division  of  power  powers  which  belonged  to  another  branch  of 
between  legislative,  executive,  and  judicial,  the  Government.      If  they  converted  them- 
and  shows  that  it  has   never  been  strictly  selves  into  a  court  of  law,  their  acts  in  that 
carried    out  in  England,  or   in  any   of  the  capacity  were  unauthorized  by  the  Constitu- 
States  of  the  Union,  any  more  than  in  the.  tion,  and  of  course  not  binding  on  the  par- 
Federal  Government  itself.  ties."     Jackson  v.  Frost,  5  Cowen,  346. 
The  Supreme   Court  of  New  York  has 


650  PRIVATE  AND   PUBLIC  ACTS. 

the  result  of  our  researches,  and  state  as  accurately  as  we  can 
what  direct  interference  with  private  rights  and  interests  of 
property  can  and  cannot  be  accomplished  by  laws. 

The  difficulty  of.  this  subject  fully  equals  its  importance : 
on  the  one  hand,  any  interference  with  rights  acquired  under 
existing  laws  is  a  positive  evil  and  injury ;  while  on  the  other, 
to  deny  to  the  Legislature  power  to  make  such  changes  as  the 
social  or  political  condition  requires,  would  reduce  us  to  a  state 
of  Chinese  stagnation  and  immobility,  and  would  be  absurdly 
inconsistent  with  the  condition  of  our  country  and  the  character 
of  our  people.  These  inherent  difficulties  have  led  to- frequent 
contradiction ;  and  there  is  perhaps  no  subject  of  equal  impor- 
tance on  which  there  are  greater  incongruities  than  on  the 
point,  what  rights  are  vested  so  as  to  be  beyond  the  reach  of 
legislative  action,  and  what  are  within  its  proper  and  regular 
control. 

It  will  be  well  to  recall  the  attention  of  the  reader  more 
particularly  to  the  branches  of  this  subject  which  we  have  al- 
ready incidentally  discussed. 

At  the  outset  we  are  to  keep  in  mind  the  distinction  be- 
tween private  acts  and  public  acts,  and  the  general  rule,*  that 
in  regard  to  the  former,  they  only  affect  those  expressly  named, 
and  that  they  do  not  conclude  third  parties  or  strangers.  But 
our  observations  now  relate  to  public  acts.f 

*  Ante,  p.  26.  was  held   that   a  private  act  did  not  bind 

f  In  1774,  the  interest  of  George  Croghan  strangers.     2  Black.  Com.  345 ;  4  Cruise  Dig. 

in  certain  lands  in  the  State  of  New  York  518.      In   BoswelPs   Case,   25   and    26    Eliz. 

was  'sold,   under    sheriff's   sale,  to   Thomas  cited  in  Barrington's  Case,  8  Co.  138  a,  it 

Jones.     In  1779  Thomas  Jones  was  attainted,  was  resolved   in  the  Court  of  Wards,   that 

In  1788,  a  private  act  was  passed  authorizing  when  an  act  of  Parliament  maketh  any  con- 

the  surveyor  general  to  sell  the  lands  so  pur-  veyance  good  against  the  king  or  other  uer- 

chased  by  Jones,  and  to  pay  the  money  upon  son  certain,  it  should  not  take  away  the  right 

the  sheriffs  sales  which  had  been  arrested  by  of  any  other."     Although  there  be  not  any 

the  war.     The  Supreme  Court  decided  that  saving  in  the  act,  and  although  the  Constitu- 

nothing  passed  by  the  sheriff's  sale  to  Jones,  tion  of  New  York  then  had  no  clause  as  to 

on   the  ground   that   the  provisions   of  the  private  property,  it  was  said  that  if  this  act 

statute  of  frauds  had  not  been  complied  with,  had  declared  the  sale  to  be  a  bar  to  the  claim 

It  further  decided,  that  the  act  of   1788,  and  of  Croghan,  a  very  serious  question  would 

sales  under  it,  had  no  effect  upon  the  rights  have  arisen  on  the  validity  of  a  statute  taking 

of  the  heirs  of  Croghan.     They  said,  "  It  is  a  away  private  property  without  the  consent  of 

private  act,  and  liable  to  the  rules  of  con-  the  owner,  and  without  any  public  object  or 

struction  applicable  to  such  statutes.     In  En-  any  just  compensation.     Jackson  v.  Catlin,  2 

gland  a  general  saving  clause  is  now  always  J.  R.  248 ;  affirmed  in  error,  8  J.  R.  520. 
added,  at  the  close  of  every  private  act,  of          In  Jackson  v.  Cory,  8  J.  R.  388,  it  is  said, 

the  rights  and  interests  of  all  persons  except  "  that  to  take  away  private  property,  even 

those  whose  consent  is  obtained ;  and  before  for  public  uses,  without  making  just  compen- 

this  practice  of  inserting  the  saving  clause,  it  sation,  is  against  the  fundamental  principles 


RETROSPECTIVE  LAWS.  651 

Before  proceeding,  however,  we  may  also  notice  the  often- 
declared  principle  of  the  common  law,  that  the  division  of  an 
empire  creates  no  forfeiture  of  previously  vested  rights  of  prop- 
erty.* 

With  these  preliminary  suggestions,  we  may  remind  the 
reader  that  we  have  already  considered  a  large  class  of  cases  in 
which  it  has  been  decided  that  the  Legislature  has  no  power  to 
perform  a  judicial  act.f  So,  acts  granting  appeals  after  the 
time  allowed  by  law,  and,  in  many  other  cases,  deciding  on 
questions  of  private  contested  rights,  have  been  held  void. 

We  have,  also,  already  seen  that  in  some  cases  the  Legisla- 
ture is  competent,  by  the  operation  of  a  repealing  act,  to  put  an 
end  to  pending  proceedings,  and  to  take  away  rights  under  ex- 
isting laws,  as  that  of  a  mortgage  debtor  to  redeem,  and  to  put 
an  end  to  pending  suits  where  a  good  right  of  action  or  a  valid 
demand  existed ;  J  but  that  in  others,  both  in  England  and  in 
this  country,  a  disposition  has  been  shown  to  prevent  this  ar- 
bitrary interference  with  the  rights  of  parties,  so  far  as  existing 
rights  of  action  were  concerned.  | 

We  have  also  considered, ^[  under  the  head  of  retrospective 
laws  and  the  retroactive  effect  of  laws,**  a  great  class  .of  decis- 
ions where,  in  some  cases,  it  has  been  held  competent  for  the 
Legislature  to  interfere  with  vested  rights  of  property,  and 
where,  in  others,  it  has  been  denied.ff 

of  free  government.     And  this  limitation  is  Legislature  had.  power.     The  People  v.  Liv- 

to  be  found,  as  an  express  provision,  in  the  ingston,  6  Wend.  527.     See,  in  this  case,  the 

Constitution  of  the  United  States."  different   phraseology    of  various   repealing 

*  Hilour's  Case,  7  Rep.  27 ;  Kelly  v.  Har-  acts  commented  on.  "  It  will  not  be  denied, 
rison,  2  Johns.  Cases,  29  ;  Jackson  v.  Lutm,  3  I  presume,"  says  Savage,  J.,  "  that  it  is  corn- 
Johns.  Cases,  109;  Terrett  v.  Taylor,  9  petent  for  the  "Legislature  to  repeal  any  act 
Cranch,  50.  upon  which  a  suit  has  been  brought ;  and,  if 

f  Ante,  p.  145.  the  repeal  is  absolute,  such  suit  is  at  an  end." 

\  Ante,  p.  112.  The  People  v.  Livingston,  6  Wend.  530. 

When  the  Revised  Statutes  of  New  York,  |  Ante,  p.  114. 

of  1828,  went  into  operation,  the  fifth  section  *j[  Ante,  p.  165  and  p.  346. 

of  the  act  repealing  previous  statutory  pro-  **  Ante,  pp.  639  et  seq. 

visions  conflicting  with  them,  used  this  Ian-  f  f  At  common   law,  improvements  made 

gunge :  "  The  repeal  of  any  statutory  prpvis-  and  annexed  to  the  freehold,  by  a  tenant  for 

ion  by  this  act  shall  not  affect  any  act  done,  life  or  years,  became  a  part  of  the  estate  of 

or  right  accrued  or  established,"  <fec.  ;  and  it  inheritance  and  went  to  the  reversioner.     In 

was  held  that,  where  a  junior  creditor's  right  1843.  an  act  was  passed  in  Maine  declaring 

to   redeem   was    acquired   after  the  Revised  that,  in  all  actions  then  pending  or  thereafter 

Statutes,  that  right  must  be  presented   and  brought  by  reversioners  against  assignees  or 

prosecuted  under  the  provisions  of  the  Re-  gr  an  lees  of  tenants  for  life,  such  grantees  or 

yised  Statutes,  and  not  according  to  the  ante-  assignees  could  obtain  compensation  for  im- 

cedent  legislation, — on    the    ground   that   it  provements  put  by  the  tenants  for  life  upon 

related  merely  to  the  remedy,  over  which  the  the  premises.     In  a  case  where  the  tenant  for 


652  VESTED   RIGHTS. 

We  have,  also,*  considered  the  effect  of  treaties  on  rights  of 

77  O 

property  and  of  action,  and  considered  how  far  they  may  have 
a  retrospective  effect. 

I  merely  here  refer  to  these  cases,  and  proceed  to  cite  some 
others  on  the  same  general  subject. 

It  has  been  repeatedly  decided,  that  it  is  not  competent,  by 
any  act  of  legislation,  to  divest  a  vested  interest  in  real  estate. 
Such  acts  are  undoubtedly  void,  for  several  reasons:  they  take 
away  private  property  without  compensation  ;  they  take  away 
property  without  any  process  of  law ;  and  they  are  not  acts  of  a 
legislative  character.  Thus,  in  New  York,  it  has  been  held, — 
where  military  bounty  lands  were  vested,  under  a  particular 
act,  in  an  officer  or  soldier,  constituting  him  a  stock  of  descent, 
and  passing  the  lands  to  his  heirs  ex  parte  paterna,  and,  for  de- 
fault of  them,  then  ex  parte  materna,  that  the  Legislature  could 
not,  by  a  subsequent  act,  divest  the  title  thus  vested  in  one  set 
of  heirs  and  pass  it  to  another,  as  from  the  heirs  ex  parte  ma- 
terna  to  those  who  were  heirs  ex  parte  paterna  but  aliens,  and 
as  such  incapable  to  take  independently  of  the  second  act.f 
So,  where  land  was  vested  in  four  heirs  of  a  decedent,  by  virtue 
of  the  treaty  with  Great  Britain  of  1794,  and  an  act  subse- 
quently passed  giving  it  to  one  of  such  heirs,  it  was  treated  as 
inoperative  and  void. J  So,  an  act  vesting  the  title  of  the  State 
in  escheated  lands  in  an  alien  next  of  kin,  after  the  widow  of 
the  decedent  had  acquired  a  good  title  to  the  land  by  release 
from  the  commissioners  of  the  land  office  under  a  general  act,  is 
wholly  inoperative  and  void.| 

But  even  vested  interests  in  real  estate  have  been  deemed 
subject  to  legislative  control,  where  the  power  has  been  consid- 
ered by  the  court  as  used  for  the  benefit  of  the  parties  inter- 
ested. A  retrospective  statute,  turning  estates  in  joint  tenancy 
into  tenancies  in  common,  has  been  held,  in  Massachusetts,  un- 

life  died  in  1841,   the  Supreme  Court  heid  tutioh  in  regard  to  the  enjoyment  of  prop- 
that  the  rights  of  the  reversioners  were  clearly  erty.     Cons.  art.  iii,  §§  1,  2,  art.  vi,  §  1,  art. 
vested ;  that  the  improvements  made  by  the  IT,  §  1,  art.   i,  §  21 ;  Austin  y.   Stevens,  24 
person  in  possession  for  life    became  incor-  Maine,  525. 
porated  into  the  reversioner's  estate  on  the  *  Ante,  p.  385. 

decease  of  the  tenant;  and  that  the  act  could  f  Jackson  ex  dem.  M'Cloughry  v.  Lyon,  9 

not  have  any  retrospective  operation,  as  such  Cowen,  664. 

interpretation  would  bring  it  in  direct  con-  \  Jackson  v.  Wright,  4  John.  R.  79. 

flict  with  the  provisions  of  the  State  Consti-  |  Englishbee  v.  Helinuth,  3  Conn.  295. 


EXEMPTION  FROM   TAXATION".  653 

objectionable.  There  seemed  to  the  court  no  constitutional  ob- 
jection to  the  power  of  the  Legislature  to  alter  a  tenure  by 
substituting  another  tenure  more  beneficial  to  all  the  tenants ; 
— an  absolute  interest  in  one  half  being  considered  better  than 
an  uncertain  interest  in  the  whole.*  - 

And  what  the  Legislature  cannot  do  directly  it  cannot 
effect  indirectly,  as  by  the  operation  of  a  statute  of  limitations. 
By  a  Massachusetts  statute,  passed  in  1817,  no  action  by  an 
heir,  to  recover  real  estate  sold  by  an  administrator  under  a 
license  from  the  Probate  Court,  shall  be  sustained  unless 
brought  within  five  years  after  the  delivery  of  the  deed.  An 
action  was  brought,  in  or  about  1825,  by  an  heir,  to  set  aside  a 
sale  made,  previous  to  the  passage  of  the  act,  under  a  license, 
by  an  administrator ;  and  it  appeared  that  the  letters  were 
void  for  want  of  jurisdiction,  and  that,  consequently,  the  sale 
conveyed  no  title.  The  act  was  relied  on  to  bar  the  action ; 
but  the  court  said  that  it  could  only  apply  to  sales  made  sub- 
sequently to  its  passage;  "it  could  not  be  construed  to  extend 
to  sales  made  more  than  six  years  previous,  without  a  violation 
of  vested  rights."  f  And  we  have  seen  the  same  point  substan- 
tially decided  in  Pennsylvania.^  So,  too,  we  have  seen  the 
same  point  determined  by  the  courts  of  Mississippi.  | 

So,  it  has  been  declared,  that  it  is  not  in  the  power  of  the 
Legislature  to  create  a  debt  from  one  person  to  another,  or 
from  one  corporation  to  another,  without  the  consent  expressed 
or  implied  of  the  party  to  be  charged.  Thus,  where  a.  statute 
was  passed  requiring  one  county  of  the  State  of  Massachusetts 
to  pay  out  of  its  treasury  money  belonging  to  it,  to  another 
county,  the  latter  county  having  before  the  passage  of  the  stat- 
ute in  question,  no  legal  right  to  the  money, — it 'was  held  to 
-  have  no  operation  as  law.^f 

Thus  far  it  seems  sufficiently  clear,  as  a  general  rule,  that 
the  Legislature  cannot  interfere  with  existing  rights  of  prop- 
erty ;  but  when  we  leave  the  subject  of  vested  interests  in  real 

*  Holbrook  v.  Finney,  4  Mass.  566;  Mil-          \.  Eakin  v.  Raub,  12  S.  and  Rawle,  p.  339; 

ler  T.   Miller,    16   Mass.    59  ;  Burghardt  v.  ante,  p.  406. 

Turner,  12  Pick.  539.     But  the  equity  of  this  ||  Boyd  v.  Barrenger,  23  Miss.  270;  ante, 

conversion  might  depend  entirely  on  the  rela-  p.  168. 
tive  ages  and  constitutions  of  the  parties.  ^[  Hampshire  v.  Franklin,  16  Mass.  86. 

f  Holyoke  v.  Haskins,  5  Pick.  20 ;  Same 
v.  Same,  9  Pick.  259. 


654 


ACTS   CONFIRMING   INVALID   MARRIAGES. 


estate  or  actual  property  in  possession,  we  find  the  subject  sur- 
rounded with  difficulty. 

We  have  seen  *  that  there  is  no  such  thins;  as  a  vested  right 

O  O 

to  exemption  from  militia  duty ;  and  exemptions  from  taxation 
depend  on  the  question  whether  the  act  creating  them  is  to  be 
treated  as  a  contract ;  f  and  rights  of  action  of  all  descriptions, 
seem  to  a  large  extent  under  the  control  of  the  Legislature. 
We  have  seen  that  acts  have  been  held  valid  confirming 

O 

invalid  marriages,^  and  declaring  valid  invalid  ministerial  pro- 
ceedings, such  as  sheriffs'  levies,  |  although  they  directly  de- 
stroyed rights  previously  existing,  and  even  in  litigation  at  the 
time  of  the  passage  of  the  act. 

The  same  principle  has  been  applied  in  Massachusetts,  and 
the  general  power  of  the  Legislature  asserted  over  all  matters  of 
general  policy,  without  reference  to  the  rights  of  individuals.^ 


*  Ante,  p.  511. 

f  Ante,  pp.  511  and  598. 

j  Ante,  p.  639.  In  this  respect,  we  have 
English  precedent  on  the  same  side,  though 
apparently  not  sustained  by  positive  judicial 
decision.  The  26  Geo.  II,  c.  xxxiii,  provided 
that  the  banns  of  matrimony  should  be  pub- 
lished in  certain  chapels,  and  that  unless  so 
published,  the  marriage  should  be  void,  and 
the  parties  solemnising  it  held  guilty  of 
felony.  In  the  King  against  the  Inhabitants 
of  Northfield,  Douglas,  661,  the  King's  Bench 
applied  this  act,  and  declared  that  marriages 
of  which  the  banns  were  published  in  other 
chapels  than  those  directed,  were  absolutely 
void.  But  Lord  Mansfield  intimated  that 
time  "  or  the  interposition  of  the  Legislature" 
might  cure  the  marriages  already  solemnized 
in  unauthorized  chapels.  Thereupon,  an  act 
was  passed,  21  Geo.  Ill,  c.  xxxiii,  declaring 
all  such  marriages  valid  in  law,  and  exempt- 
ing the  clergymen  who  had  celebrated  them 
from  the  penalties  of  the  26  Geo.  II,  c.  xxxiii. 

I  Ante,  p.  641. 

^[  By  a  Massachusetts  act  of  1784,  in  ad- 
herence to  a  policy  pursued  by  several  pro- 
vincial statutes,  the  courts  of  sessions  were 
authorized  "  to  fix  and  determine  the  bound- 
aries of  the  jail  yards  to  the  several  jails  ap- 
pertaining." Under  this  act,  the  Court  of 
Sessions  for  the  county  of  Cumberland,  fixed 
and  determined  the  limits  or  bounds  of  the 
town  of  Portland,  exclusive  of  the  islands,  as 
the  limits  and  boundaries  of  the  jail  yard. 
But  the  Supreme  Court  held,  that  this  was  an 
abuse  of  the  power  given  by  the  act ;  that  the 
practice  under  the  former  laws  for  half  a 
century,  was  irresistible  evidence  of  the  true 
construction  of  the  power  of  the  Sessions; 


that  they  had  no  authority  so  to  appropriate 
private  property  to  public  uses  without  com- 
pensation ;  and  that  they  could  not  extend 
the  limits  of  the  jail  yard  beyond  the  land  of 
the  county,  with  the  highways  adjoining  or 
leading  to  the  prison.  Baxter  v.  Taber,  4 
Mass.  360. 

Thereupon,  in  1808,  the  Legislature  passed 
a  law,  and  in  1809  one  supplementary  to  it, 
the  two  in  substance  declaring  that  the  bound- 
aries of  jail  yards  theretofore  fixed  and  deter- 
mined by  the  Courts  of  Sessions,  should  be 
valid  and  legal  so  far  forth  that  no  person 
found  anywhere  within  them  should  be  con- 
sidered as  having  committed  an  escape.  And 
this  act  was  held  a  valid  exercise  of  the  legis- 
lative power.  The  court  said,  the  statute  is 
like  the  laws  frequently  made  to  confirm  the 
acts  and  doings  of  towns  and  other  corpora- 
tions which  have  been  void  for  some  infor- 
mality, and  in  reviving  terms  of  courts  which 
have  failed  from  accident.  Such  acts  have 
never  been  questioned  on  constitutional 
ground.  And  the  acts  of  1808  and  1809,  were 
held  to  defeat  actions  brought  for  escapes  be- 
fore they  were  passed.  Waller  v.  Bacon,  8 
Mass.  471 ;  Patterson  v.  Philbrook,  9  Mass. 
151 ;  Locke  v.  Dane,  9  Mass.  360.  The  first 
of  these  cases  is  a  short,  per-curiam  opinion. 
The  second  was  decided  on  the  authority  of 
the  first,  and  the  third  on  the  authority  of  the 
other  two.  The  subject  does  not  seem  to  have 
received  the  attention  that  its  importance 
merited. 

A  statute  passed  in  Massachusetts,  nar- 
rowing the  jail  liberties  after  a  day  named 
in  the  act,  has  been  held  not  to  be  unconsti- 
tutional, as  applied  to  a  bond  given  before 
the  passage  of  the  statute ;  and  the  debtor 


ACTS  CONFIRMING  INVALID  PROCEEDINGS.  655 

If  the  power  of  the  Legislature  be  conceded  over  ministerial 
and  administrative  proceedings,  the  question  still  remains  how 
far  they  can  act  upon  judicial  proceedings  which  have  already 
taken  place ;  how  far  they  can  interfere  with  the  regular  opera- 
tion of  justice ;  how  far  particular  laws  can  be  passed  where 
general  rules  exist ;  how  far  defective  proceedings  can  be  cured. 
On  all  these  subjects  many  and  conflicting  decisions,  as  we  have 
seen,  have  been  made.  In  some  cases,  as  we  have  seen,  the 
supremacy  of  the  Legislature  has  been  asserted ;  in  others,  the 
strict  division  of  powers  has  been  enforced.  Great  contrariety 
is  to  be  observed ;  but  I  think  that  on  a  careful  observation  of 
the  cases,  and  especially  the  later  decisions  turning  on  the  in- 
terpretation and  application  of  the  phrase  "the  law  of  the 
land,"  among  which  may  be  specially  noticed  the  determinations 
on  the  temperance  laws,  it  is  obvious  that  there  is  a  strong  and 
increasing  disposition,  on  the  part  of  the  judiciary,  strictly  to 
enforce  the  constitutional  prohibitions,  and  to  restrain  the 
Legislatures  from  those  invasions  of  private  rights  to  which  the 
haste  of  our  law-making  operations  frequently  tends.* 

having,  after  the  day  fixed  by  the  statute,  creditor,  and  of  malting  alterations  in  such 
made  use  of  the  liberties  in  their  previous  laws,  as  a  change  of  circumstances  or  the 
extent,  was  held  guilty  of  an  escape.  Reed  public  good  may  require ;  and  in  doing  this, 
T.  Fullum,  2  Pick.  158.  one  may  be  deprived  of  a  right,  which  he  has 
In  Maine,  under  the  acts  of  that  State  of  by  existing-  laws,  to  arrest  the  body  or  to 
1835  and  1836,  in  actions  on  jail  bonds,  given  attach  or  seize  a  certain  description  of  prop- 
as  security  against  the  escape  or  discharge  of  erty,  without  infringing  any  constitutional 
debtors  charged  in  execution,  the  plaintiff  provision.  When  a  person,  by  the  existing 
was  entitled  to  recover  as  damages  the  laws,  becomes  entitled  to  recover  a  judgment, 
amount  of  the  execution  costs,  fees,  and  costs  or  to  have  certain  real  or  personal  estate  ap- 
of  commitment,  with  twenty-five  per  cent,  in-  plied  to  pay  his  debt,  he  is  apt  to  regard  the 
terest.  And  in  1838,  while  these  acts  were  privilege  which  the  law  affords  him,  as  a 
in  force,  such  a  bond  was  taken.  In  1839  the  vested  right,  not  considering  that  it  has  its 
Legislature  passed  a  law  declaring  that  in  foundation  only  in  the  remedy,  which  may 
cases  of  this  kind  the  plaintiff  should  only  re-  be  changed,  and  the  privilege  thereby  de- 
cover  his  actual  damages  sustained.  In  a  stroyed."  Oriental  Bank  v.  Freese,  18  Maine, 
case  in  which  the  plaintiff  relied  on  the  prior  112  ;  see  also,  Potter  v.  Sturdivant,  4  Green- 
legislation,  it  was  insisted  that  the  act  of  leaf,  154. 

1839  was  unconstitutional  and  void;  but  the  *  I  may  be  permitted,  in  this  note,  to  no- 
court  held  that  it  merely  controlled  the  tice  some  of  these  cases.  Some  of  them  have 
remedy,  as  such  was  valid,  and  the  plaintiff  been  already  more  briefly  referred  to: 
was  nonsuited.  Mr.  J.  Shipley  said,  "The  Jonathan  Jenckes,  a  citizen  of  New  Hamp- 
constitutional  provision  in  regard  to  the  shire,  diet1  seized  of  lands  in  Rhode  Island, 
right  of  private  property,  does  not  prohibit  The  estate  was  insolvent.  Letters  were  taken 
the  Legislature  from  passing  such  laws  as  act  out  in  New  Hampshire,  and  a  license  granted 
retrospectively  not  on  the  right  of  property  by  the  judge  of  probate  of  that  State,  to  sell 
or  obligation  of  the  contract,  but  only  upon  the  land  of  the  testator  for  the  payment  of 
the  remedy  which  the  laws  afford  to  protect  debts.  Under  that  order,  the  land  in  Rhode 
or  enforce  them.  The  Legislature  must  neces-  Island  was  sold  in  1791.  In  1792  an  act  was 
sarily  possess  the  power  to  determine  in  passed  by  the  Legislature  of  Rhode  Island, 
what  manner  the  person  or  property  of  a  ratifying  and  confirming  the  title  acquired 
debtor  shall  be  subjected  to  the  demands  of  a  under  the  sale.  In  an  action  of  ejectment 


C56 


ACTS   CONFIRMING    INVALID    PROCEEDINGS. 


In  some  cases  the  Legislature  acts  directly  on  the  subject- 
matter.     But  the  question  of  the  extent  of  legislative  power 


brought  by  the  heirs-at-law  of  Jonathan 
Jenckes,  against  parties  claiming  under  the 
sale  and  legislative  ratification,  it  appeared 
that  the  sale  of  lands  in  Rhode  Island  by  vir- 
tue of  an  order  made  by  a  New  Hampshire 
judge  of  probate,  was  absolutely  void,  and  the 
title  of  the  defendant  depended  on  the  valid- 
ity of  the  confirming  statute  of  Rhode  Island. 
The  Supreme  Court  of  the  United  States  held 
the  act  good,  and  that  the  title  passed  by  it,  on 
the  ground  that  the  estate  of  the  heirs  of 
Jenckes  was  a  vested  estate  in  fee,  but  that  it 
was  subject  to  the  payment  of  the  debts  of 
the  decedent,  and  that  the  act  divested  no 
vested  rights  except  in  favor  of  existing  liens 
of  paramount  obligation  ;  that  the  act  was  to 
be  considered  not  as  a  judicial  act,  but  as  an 
exercise  of  legislation  ;  that  no  attempt  was 
made  to  impeach  the  sale  for  fraud  ;  and  that 
as  to  want  of  notice,  it  might  well  be  pre- 
sumed after  the  lapse  of  more  than  thirty 
years.  Wilkinson  v.  Leland,  2  Peters,  627 ; 
see  the  case  again,  10  Peters,  294.  The  court 
disposes  of  the  question  of  judicial  power  very 
summarily,  saying  that  the  act  purports  to  be 
a  legislative  resolution,  and  not  a  decree.  It 
could  hardly  purport  to  be  any  thing  but' 
what  it  was.  The  question  was  whether  it 
operated  like  a  decree.  And  in  examining  the 
case,  it  is  obvious  that  in  arriving  at  its  de- 
cision, the  court  was  largely  influenced  by  the 
peculiar  character  of  the  then  Government  of 
Rhode  Island,  which  had  had  no  written  Con- 
stitution of  Government,  but  was  governed 
under  the  Charter  of  Charles  II,  which  did 
not  attempt  to  divide  the  powers  of  Govern- 
ment, but  gave  to  the  General  Assembly  a 
very  sweeping  power  of  making  laws,  under 
which  a  long  series  of  acts  was  proved,  show- 
ing a  frequent  exercise  of  the  same  kind  of 
authority. 

In  a  case  in  Pennsylvania,  it  has  been 
held  that  a  judgment  erroneously  entered  on 
the  first  day  of  term  in  1817,  was  cured  by  an 
act  passed  in  1822.  The  court  said,  this  law 
had  impaired  no  contract,  disturbed  no  vested 
right.  Every  confirming  act  is  in  its  very 
nature  retrospective.  Retrospective  acts  which 
only  vary  the  remedies,  divest  no  right,  but 
merely  cure  a  defect  in  proceedings  otherwise 
fair.  The  omission  of  formalities  which  do 
not  diminish  existing  obligations  contrary  to 
the  situation  when  entered  into  and  when 
prosecuted,  is  consistent  with  every  principle 
of  natural  justice.  Underwood  v.  Lilly,  10  S. 
&  R.  97. 

In  Massachusetts,  the  Constitution  in 
force  in  1820,  gave  the  Legislature  full  power 
and  authority  to  make,  ordain,  and  establish 
all  manner  of  wholesome  and  reasonable  or- 
ders, laws,  statutes,  directions  and  instruc- 
tions (so  as  the  same  be  not  repugnant  or 
contrary  to  the  Constitution)  us  they  shall 


judge  to  be  for  the  good  and  welfare  of  the 
commonwealth,  and  of  the  subjects  thereof; 
and  it  was  also  declared  that  each  individual 
of  the  society  has  a  right  to  be  protected  by 
it,  in  the  enjoyment  of  his  life,  liberty,  and 
property,  according  to  standing  laws ;  and 
by  an  act  of  ]  783,  the  courts  of  probate  were 
empowered  to  sell  the  real  estates  of  minor 
children.  In  1790  certain  real  estate  was 
vested  in  the  minor  children  of  Asaph  Rice, 
in  right  of  their  deceased  mother ;  nnd  in 
1792,  a  resolve  was  passed  by  the  General 
Court,  or  Legislature,  of  the  State,  authoriz- 
ing the  father  to  sell  and  convey  the  premises 
for  the  best  price  that  could  be  got,  and  in- 
vest, the  proceeds  for  the  benefit  of  the  chil- 
dren. Under  this  resolvd  the  property  was 
sold,  and  the  validity  of  the  sale  coming  up 
for  adjudication,  it  was  contended  that  the 
resolution  was  void  as  an  act  of  judicial 
power.  But  it  was  held  valid  as  not  being  a 
judicial  act;  and  while  it  was  conceded  that 
under  the  general  grant  of  legislative  au- 
thority, the  Legislature  could  not  deprive 
a  citizen  of  his  estate,  or  impair  a  valu- 
able contract,  it  was  held  that  the  resolve  in 
question,  being  for  the  benefit  of  the  minors, 
was  good.  Rice  v.  Parkman,  16  Mass.  326. 
The  opinion  in  this  case  is  delivered  by  a 
very  able  judge,  Parker,  C.  J.,  but  it  appears 
open  to  criticism.  It  is  said,  "  that  this  was 
not  a  judicial  act,  that  it  was  not  a  case  of 
controversy  between  party  and  party,  nor  is 
there  any  decree  or  judgment  affecting  the 
title  to  property.1'  That  there  was  no  con- 
troversy nor  any  opportunity  for  controversy, 
as  there  would  have  been  in  a  regular  judicial 
proceeding,  is  the  very  ground  of  complaint ; 
and  the  precise  allegation  is,  that  the  resolve 
is  in  its  operation  and  effect  a  decree  or  judg- 
ment affecting  the  title  to  property.  It  is  ad- 
mitted in  the  defence,  that  the  Legislature 
could  not  deprive  a  citizen  of  his  estate ;  but 
that  is  exactly  what  is  done  in  this  case. 
The  property  belongs  to  minor  heirs,  the 
Legislature  directs  it  to  be  sold,  or  in  other 
words,  divests  them  of  their  estates.  It  is 
alleged  to  be  for  their  benefit.  That  may  or 
may  not  be.  It  may  have  been  a  fraud,  and 
the  proceeds  embezzled.  The  true  question 
is  whether  a  party  can  be  deprived  of  his 
property  without  having  the  benefit  of  plead- 
ing, evidence,  hearing,  and  trial.  If  the 
Legislature  takes  away  property  without  any 
of  these  proceedings,  it  does  what  the  judi- 
ciary only  can  do  after  going  through  them, 
and  in  this  sense  must  be  said  to  perform  a 
judicial  act. 

In  Massachusetts,  by  the  Constitution  in 
force  in  1814,  it  was  declared  that  "the 
power  of  suspending  the  laws  or  the  execu- 
tion of  the  laws,  ought  never  to  be  exercised 
but  by  the  Legislature,  or  by  authority 


PROCEDURE, 


657 


often  arises  in  regard  to  statutes  which  affect  a  right  of  prop- 
perty  indirectly,  by  acting  on  the  proceedings  in  courts  of  jus- 


derived  from  it,  to  be  exercised  in  such  par- 
ticular cases  only  as  the  Legislature  shall  ex- 
pressly pi'ovide  for."  This  provision  seems 
to  have  been  suggested  by  the  English  Bill  of 
Rights  and  its  provisions,  in  regard  to  the 
dispensing  power.  In  1813,  on  the  petition 
of  Holdeu,  a  resolution  was  passed  by  the 
Legislature,  authorizing  him  to  prosecute 
certain  claims  against  the  estate  of  Hannah 
Ranger,  as  if  the  same  had  been  commenced 
within  the  time  prescribed  by  law,  and  de- 
claring that  the  operation  of  any  statutes  of 
limitation  of  the  State,  that  might  bar  the 
claims  of  Holden,  should  be  by  this  resolution 
suspended.  An  action  being  brought  by 
Holden  against  the  administrator  of  the  es- 
tate, it  appeared  that  the  claims  were  in  fact 
barred  by  the  general  statute  of  limitations ; 
but  the  resolution  was  relied  on.  The  court, 
however,  held  that  though  the  general  power 
of  suspending  laws  resided  in  the  Legislature, 
they  had  not  the  power  to  suspend  a  general 
law  in  favor  of  an  individual,  nor  in  an  in- 
dividual case ;  and  the  plaintiff  was  according- 
ly nonsuited.  Holden  v.  James,  1 1  Mass.  396. 
A  mortgage  executed .  to  Eames  and  Ry- 
der, loan  commissioners  for  the  county  of 
Kings,  in  New  York,  having  become  due  in 
1842,  notice  was  published  that  the  premises 
would  be  sold.  The  term  of  office  of  one  of 
the  commissioners  (Ryder)  expired  in  1843, 
and  the  remaining  commissioner  (Eames) 
proceeded  to  sell  the  premises.  The  law  of 
the  State  was  well  settled  on  grounds  which 
we  have  elsewhere  considered,  under  the 
head  of  "  summary  administrative  proceed- 
ings "  (ante,  p.  302),  that  a  sale  by  one  of  sev- 
eral loan  commissioners  was  wholly  void,  and 
that  no  title  could  be  thus  acquired.  Olmsted 
v.  Elder,  1  Seld.  144.  On  the  12th  of  May, 
1844,  an  act  was  passed  entitled  an  "  Act  to 
confirm  certain  official  acts  of  the  commis- 
sioners for  loaning  the  moneys  of  the  United 
States  of  the  county  of  Kings,"  which  de- 
clared that  all  the  official  acts  of  the  commis- 
sioners for  loaning  money  in  Kings  Co.,  and 
all  proceedings  by  the  same,  performed  or 
transacted  solely  by  Eames,  he  being  one  of 
the  said  commissioners,  or  by  any  other  per- 
son being  one  of  said  commissioners,  at  any 
time  after  the  expiration  of  the  term  of  office 
of  any  associate  commissioner,  and  before  a 
successor  to  such  associate  commissioner  had 
been  duly  qualified,  should  be,  and  be  held 
to  be,  of  the  same  force  as  if  such  acts  or 
proceedings  had  been  performed  by  such 
commissioners  jointly;  and  all  deeds  and 
other  papers  executed  by  the  said  Eames,  or 
by  any  one  of  such  commissioners,  should  be, 
and  be  held  to  be,  of  the  same  force  and 
validity  as  if  such  deeds  and  other  papers  had 
been  sealed  and  subscribed  by  both  of  said 
commissioners.  In  an  action  brought  by  a  party 
42 


claiming  against  the  foreclosure  and  sale  by 
Eames,  the  invalidity  of  the  proceeding  being 
established,  it  was  insisted  by  the  defendant, 
that  it  was  confirmed  and  rendered  valid  by 
the  act  of  1845  ;  but  all  retrospective  effect 
was  denied  to  it.  The  court  said,  "  The  act 
could  not,  and  did  not,  act  retrospectively,  as 
to  take  away  any  existing  rights.  We  hold 
our  right  of  property  under  a  higher  power, 
which  cannot  be  overturned  by  the  Legis- 
lature." And  the  plaintiff  had  judgment. 
Pell  v.  Ulman,  per  S.  B.  Strong,  J.  (not  re- 
ported), I  take  the  decision  from  the  printed 
case,  obligingly  furnished  me  by  J.  Town- 
send,  Esq.,  counsel  for  the  plaintiff.  A  ques- 
tion very  analogous  has  arisen  under  the  act 
of  1850,  to  confirm  proceedings  in  surrogates' 
courts,  by  which  an  attempt  has  been  made 
to  confirm  proceedings  entirely  void,  because 
not  taken  in  conformity  to  the  statutes  con- 
ferring jurisdiction  on  the  surrogate. 

Dean  v.  Dean,  2  Mass.  150,  is  a  case  turn 
ing  on  the  legislative  resolve  authorizing  an 
appeal  from  a  probate-court  decree,  after  the 
time  to  appeal  had  expired.  The  appeal  was 
dismissed,  but  the  power  of  the  Legislature 
to  pass  the  act  was  not  deniedjaor,  indeed,, 
discussed. 

Where  a  statute  of  Massachusetts  pro- 
vided that  bank  commissioners  should  be 
authorized  to  examine  the  State  banks,  and  if 
on  examination  they  appeared  to  the  commis- 
sioners insolvent  or  in  a  hazardous  condition, 
then  that  on  their  report  a  justice  of  the  Su- 
preme Court  should,  without  further  investi- 
gation, be  required  to  issue  an  injunction  re- 
straining their  operations,  it  was  held  that 
this  was  not  an  exercise  by  the  Legislature  of 
judicial  power,  on  the  ground  that  it  made 
the  report  prima  facie  evidence  of  the  facts; 
Commonwealth  v.  Farmers  and  Mechanics' 
Bank,  21  Pick.  543. 

An  act  authorizing  the  guardian  of  an  in* 
fant  to  sell  and  convey  at  public  or  private 
sale,  under  the  direction  and  sanction  of  the 
judge  of  probate,  is  a  valid  act,  and  not  un- 
constitutional as  an  exercise  of  judicial  power. 
Mason  v.  Wait,  4  Scammon,  134. 

A  provision  that  a  municipal  charter 
shall  not  take  effect  until  approved  of  by  a 
majority  of  the  inhabitants  of  the  district  in- 
corporated, is  not  the  delegation  of  legislative 
power ;  it  is  the  mere  question  of  the  accept- 
ance of  a  charter.  City  of  Paterson  v.  The 
Society,  (fee.  4  Zabriskie,  p.  385.. 

A  statute  in  Indiana,  after  enumerating 
certain  specific  causes  for  which  divorces  may 
be  granted  by  the  courts,  declares  that  they 
may  be  granted  for  "  any  other  cause  for 
which  the  court  shall  deem  it  proper  that  a 
divorce  should  be  granted."  (2  Rev.  Stat.  of 
Indiana,  p.  285.)  In  a  case  arising  under 
this  act,  it  was  insisted  that  this  provision 


658  EVIDENCE. 

tice,  or  as  it  is  said  by  acts  affecting  the  remedy.  In  regard  to 
this,  the  Legislature  may  affect  existing  rights  in  the  first  place, 
by  statutes  of  limitation  restricting  the  time  within  which  ac- 
tions may  be  brought.  Secondly,  by  acts  in  regard  to  the  evi- 
dence or  procedure,  by  altering  the  remedy  or  prohibiting  a 
defence.  Of  these  in  their  order. 

As  to  statutes  of  limitation,  the  rule  appears  to  be  that  they 
cannot  be  made  so  to  retrospect  as  absolutely  to  cut  off  an  ex- 
isting right  of  action;  but  within  these  bounds,  it  is  said  that 
the  Legislature  has  full  power  over  the  subject.  By  the  Re- 
vised Statutes  of  Massachusetts,  it  was  provided  that  all  actions 
mpon  judgments  should  be  commenced  within  six  years  next 
.after  the  cause  of  action  shall  accrue.  The  Revised  Statutes. 
were  passed  on  the  4th  of  November,  1885,  and  went  into 
operation  on  the  1st  of  May,  1836.  After  the  1st  of  May,  1 836, 
suit  was  brought  on  a  judgment  recovered  in  1817.  The  law 
was  held  not  to  be  unconstitutional,  as  impairing  the  obligation 
of  contracts,  since,  as  it  was  enacted  'on  the  1st  of  November, 
1835,  and  did  not  go  into  operation  till  the  1st  of  May,  1836, 
the  creditor  had  an  opportunity  in  the  interval  to  bring  his 
action  on  any  such  judgment  recovered  more  than  six  years  be- 
fore the  1st  of  May,  1836;  and  it  was  said,  "Whether  the 
time  allowed  for  creditors  to  commence  their  actions  was  a 
reasonable  time  or  not,  was  a  question  within  the  exclusive 
power  of  the  Legislature  to  determine."  * 

The  same  rule  seems  to  hold  good  in  regard  to  evidence ; 
the  Legislature  may  alter  the  rules  of  testimony  in  regard  even 
to  suits  pending,  however  seriously  the  change  may  affect  the 
rights  of  parties;  but  the  power  must  not  be  so  exercised  as  to 
cut  off  a  clear  valid  right.  The  Supreme  Court  of  Massachu- 
setts has  said,  "  The  Legislature  may  prescribe  rules  of  evidence 
by  which  parties  may  support  their  acknowledged  rights.  If 
at  any  time  evidence  was  required  by  law  which  would  de- 
feat a  constitutional  right,  the  same  would  not  be  binding  on 
the*  courts."  f 

was  unconstitutional,   because  it   conferred  ary  power  of  the  court.     Hitter  v.  Hitter,  5 

legislative  power  on  the  courts ;  but  the  ob-  Blackf.  81. 

jcction  was  held  void  on  the  ground  that  it  *  Smith  v.  Morrison,  22  Pick.  430. 

only  authorized  the  exercise  of  the  discretion-          f  Kendall  v.  Kingston,  5  Mass.  533. 


REMEDIES.  659 

In  regard  to  remedies  generally,  the  right  of  the  Legislature 
has  been  repeatedly  asserted,  and  in  very  sweeping  terms.  So, 
in  Massachusetts,  it  has  been  said,  "  There  is  no  such  thing  as  a 
vested  right  to  a  particular  remedy.  The  Legislature  may 
always  alter  the  form  of  administering  right  and  justice  and 
may  transfer  jurisdiction  from  one  tribunal  to  another."  '  It 
has  been  said,  in  the  same  State,  to  be  very  clear  that  a  statute 
authorizing  representatives  in  a  suit  to  come  in  and  to  prose- 
cute to  judgment,  is  a  valid  act,  and  may  well  apply  to  cases 
pending  at  the  time  it  passed."  f  A  statutory  provision  allow- 
ing an  executor  to  maintain  trespass  quareclausum  for  an  in  jury 
done  to  the  land  in  the  life  time  of  the  testator,  is  not  uncon- 
stitutional as  applied  to  a  trespass  committed  before  the  pro- 
vision went  into  operation,  as  it  affects  the  remedy  only.  J 
So,  we  have  seen  that  there  is  no  vested  right  to  the  defence  of 
usury.  I 

So,  again,  a  Massachusetts  statute,  of  1838,  regulated  pro- 
ceedings by  insolvents  to  obtain  their  discharge.  On  the  6th 
of  April,  1841,  a  party  applied  for  the  benefit  of  the  statute. 
An  act  was  passed  in  1841,  going  into  effect  on  the  17th  of 
April,  declaring  that  no  certificate  of  discharge  should  be 
granted  if  the  debtor,  within  six  months  before  his  application, 
should  have  made  an  assignment  with  preferences.  On  the  3d 
of  April  the  debtor  had  made  such  an  assignment.  It  was  in- 
sisted that  the  insolvent  was  still  entitled  to  his  discharge 
under  the  act  of  1838  ;  but  the  court  held  otherwise,  saying,  "It 
is  clear  that  the  appellant  had  no  vested  right  to  a  discharge  at 
the  time  of  filing  his  petition."  ^[ 

So,  even  when  a  suit  is  definitively  decided,  it  has  been 
held  that  a  right  of  appeal  can  be  given  by  a  statute  passed 
for  that  purpose.  Suit  was  brought  by  Sampeyrac,  in  the  Cir- 
cuit Court  of  Arkansas,  to  establish  his  title  to  certain  lands. 
An  answer  was  put  in,  on  behalf  of  fhe  United  States,  deny- 
ing the  claim,  and  setting  up  that  the  plaintiff's  grants  were 
forged.  In  1827,  however,  a  decree  was  made  in  favor  of  the 

*  Springfield  v.  Hampden  Commissioners  t  Wilbur  v.  Gilmore,  21  Pick.  50. 

of  Highway,   6   Pick.  501 — a  mandamus   to  f  Baugher  v.  Nelson,  9  Gill,  299  ;  ante,  p 

commissioners  of  highways.  350. 

f  Holyoke  v.  Haskins,  9  Pick.  263.  T[  Ex  parfe  Lane,  3  Met.  213. 


660  REMEDIES. 

title.  No  appeal  was  taken,  and  the  time  for  appealing  expired. 
In  1830,  Congress  passed  an  act  authorizing  the  courts  of  Ar- 
kansas to  proceed,  by  bills  filed  or  to  be  filed  by  the  United 
States,  to  review  any  decrees  of  the  court  alleged  to  have  been 
made  on  forged  warrants  or  grants.  Under  this  act  a  bill  of 
review  was  filed  by  the  United  States  to  set  aside  the  decree  in 
question ;  the  case  was  brought  before  the  Supreme  Court  of 
the  United  States,  and  it  was  insisted  that  the  act  of  1830  de- 
prived the  claimant  of  a  vested  right ;  but  the  court  held  that, 
considering  the  act  of  1830  as  providing  a  remedy  only,  it  was 
entirely  unexceptionable  ;  that  it  only  organized  a  tribunal  with 
judicial  powers ;  that  the  retrospective  operation  of  a  law  pro- 
viding a  remedy  formed  no  objection  to  it ;  and  it  was  said 
that,  "  almost  every  law  providing  a  new  remedy  aifects  and 
operates  upon  causes  of  action  existing  at  the  time  the  law  is 
passed."  And  it  appearing  that  the  plaintiff  was  a  fictitious 
person,  and  the  alleged  grant  a  forgery,  the  original  decree  was 
reversed.  * 

It  has  been  said  by  the  chancellor  of  the  State  of  New 
York,  that  where  naked  trustees  might  be  compelled^  to  transfer 
the  legal  title  to  cesluis  que  trust  under  the  decree  of  a  court  of 
equity,  there  could  be  no  doubt  that*  the  Legislature  had  the 
power  to  transfer  the  title.f 

In  regard  to  this  matter  of  remedies,  it  has  been  in  several 
cases  held,  that  the  right  of  the  Legislature  to  interfere  de- 
pended on  the  point  whether  the  end  sought  to  be  attained  by 
the  Legislature  was  a  good  one.  So,  an  act  cutting  off  the  de- 
fence of  usury  was  held  valid,  because  usury  was  considered 
as  an  immoral  defence.}  So,  the  Supreme  Court  of  Massachu- 
setts has  said  there  could  be  no  vested  right  to  do  wrong.  |  So, 
the  act  confirming  invalid  marriages  was  held  to  be  good,  be- 
cause the  object  aimed  at  by  the  Legislature  was  commend- 
able, ^f  But  this  is  a  formidable  if  not  a  fallacious  line  of 

*  United  States  v.   Sampcyrac,  7  Peters,  7  Paige,  82  ;  Morgan  et  al.  v.  Lesler,  "Wright's 

222 ;  B.  c.  Hempstead's  Arkansas  C.  C.  R.  119.  Ohio  R.  144. 

\Ve  have  seen  (ante,  p.  168)  that,  in  Pennsyl-  J  Baugher  v.  Nelson,  9  Gill,  299  ;  ante,  p. 

vania,  the  power  of  the  Legislature  to  pass  a  350. 

statute  giving  a  writ  of  error  in  a  case  where  ||  Foster  v.  The  Essex  Bank,  16  Mass.  245 ; 

none  lay  before  the  passage  of  the  act,  has  ante,  p.  410. 
been  denied.  ^[  Gosheu  v.  Stonington,  4  Conn.  226  ;  ante, 

\  Dutch  Church  in  Garden  Street  v.  Mott,  p.  640. 


VESTED    EIGHTS.  661 

reasoning.  It  assumes  that  a  power  exists  in  the  judiciary  to 
decide  on  the  morality,  wisdom,  or  justice  of  acts  of  legislation, 
and  to  treat  them  accordingly.  This  authority  I  have  already 
had  occasion  to  deny. 

If  the  cases  which  I  have  here  grouped,  and  to  which  I  have 
referred,  be  carefully  considered,  I  think  it  must  be  admitted 
that  I  have  not  at  all  exaggerated  the  difficulty  of  denning 
vested  rights  ;  that  no  general  rule  can  be  laid  down  which  will 
describe  with  precision  the  extent  to  which  legislative  interfer- 
ence with  rights  or  interests  in  property,  under  our  system,  is 
permitted  or  prohibited. 

The  construction  of  the  great  constitutional  clauses  in  regard 
to  private  property,  the  obligation  of  contracts,  and  the  right 
to  process  of  law,  is  settled  with  considerable  accuracy ;  but 
beyond  this  the  subject  is  infested  with  plain  and  painful  con- 
tradiction. On  the  one  hand,  we  have  the  propositions — that 
the  Legislature  can  only  make  laws;  that  a  judicial  act,  not 
being  a  law,  is  beyond  its  competency ;  and  that  private  rights 
are  entitled  to  the  protection  of  the  law  of  the  land.  Taking, 
on  the  other  hand,  the  conceded  power  of  the  Legislature  over 
the  procedure  and  remedy — their  right  to  pass  repealing  acts, 
and  in  many  cases  retrospective  acts,  and  I  think  the  result  of 
the  investigation  is,  that  in  no  branch  of  our  subject  clear  lines 
of  demarkation  are  more  imperatively  required,  nor  in  any 
more  difficult  to  establish.  At  present,  all  that  can  be  done  is 
to  bring  each  case  to  the  test  of  previous  decisions,  and  of  prin- 
ciple, and  as  far  as  possible,  to  endeavor  to  restrict  the  operation 
of  laws  to  future  cases.  Every  sudden  alteration  of  existing 
rights,  duties,  or  relations,  by  the  operation  of  law,  as  a  general 
rule,  tends  to  insecurity  and  danger. 

This  idea  is  expressed  to  a  certain  extent  in  Massachusetts, 
in  a  case  already  cited,  where  the  court  said,  "  A  creditor  has 
no  vested  right  in  the  mere  remedy,  unless  he  may  have  exer- 
cised that  right  by  the  commencement  of  legal  process  under  it 
before  the  law  making  an  alteration  concerning  it  shall  have 
gone  into  operation."  *  So,  too,  in  Pennsylvania,  under  an  act 

*  Bigelow  v.  Pritchard,  21  Pick.  174. 


662  WRITTEN    LAW. 

for  the  sale  of  vacant  lands,  passed  April,  1792,  it  was  held 
sufficient  for  a  person  holding  a  land  warrant,  in  a  suit  against 
an  intruder  without  title,  to  show  that  he,  the  warrantee,  had 
been  prevented  by  reasonable  apprehension  of  the  Indians  from 
making  a  settlement  on  the  warranted  lands.  Thereupon  the 
Legislature,  in  1814,  passed  a  law  requiring  the  warrantee  in 
such  suits  to  prove  that  he  had  personally  gone  on  to  the  land. 
The  Supreme  Court  of  Pennsylvania  held  that  this  explanatory 
act  could  not  apply  to  suits  before  its  passage;  that  nothing 
less  than  positive  expressions  would  warrant  the  court  in  giving 
a  construction  which  would  work  manifest  injustice.  "  It  must 
not  be  supposed  that  the  Legislature  meant  to  do  injustice;  and 
what  but  injustice  would  it  be  to  subject  a  man  to  the  loss  of 
his  action  and  the  costs  of  suit  by  a  retrospective  law,  although 
at  the  time  when  he  commenced  his  suit,  he  was  entitled  by  the 
established  law  to  recover  ? "  * 

The  same  idea  has  been  expressed  still  more  clearly  and 
emphatically  in  the  fundamental  law  of  New  Jersey.  The  Con- 
stitution of  that  State  declares  that,  "  The  Legislature  shall  not 
pass  any  bill  of  attainder,  ex  post  facto  law,  or  law  impairing 
the  obligation  of  contracts,  or  depriving  a  party  of  any  remedy 
for  enforcing  a  contract  which  existed  when  the  contract  was 
made"  f  This  provision  is  evidently  drawn  to  obviate  the 
difficulties  and  answer  the  objections  growing  out  of  the  subtle 
distinction  taken  between  the  obligation  and  the  remedy.  It 
very  clearly  declares  that  the  substantial  remedial  legislation 
existing  at  the  time  a  contract  is  made,  enters  into  and  forms 
part  of  the  agreement ;  it  is  the  assertion,  by  a  populous  and 
flourishing  community,  that  vested  rights  may  be  safely  pro- 
tected to  this  extent ;  and  it  seems  to  me  every  way  worthy  of 
commendation  for  its  vigorous  justice  and  sound  sense. 

I  here  bring  to  a  close  this  attempt  to  state  the  rules  which 
govern  the  interpretation  and  application  of  written  law.  On 
a  careful  consideration  of  the  whole  subject,  its  importance  can- 
not fail  to  impress  the  mind.  "  Absolute  liberty,  just  and  true 
liberty,  equal  and  impartial  liberty,  is  the  thing  we  stand  in 

*  Bedford  v.  Shilling,  4  S.  &  R.  401.  f  Cons,  of  New  Jersey,  art.  iv,  sec.  vii,  §  3. 


PHILLIMORE  ON  JURISPRUDENCE.  663 

need  of !  "*  This  is  the  fervid  language  of  the  great  apostle 
of  toleration ;  and  the  longing  should  be  as  earnest,  and  the 
prayer  as  devout  now  as  when  the  emphatic  words  were  uttered. 
But,  in  our  time,  liberty  will  not  be  secured  by  violent  effort 
or  convulsive  action.  Liberty  will  only  be  preserved  by  steady 
determination  and  systematic  habit,  by  the  practice  of  those 
virtues  of  fortitude  and  self-command,  most  difficult,  whether 
for  nations  or  individuals. 

Most  eminently  is  this  true  of  this  country.  Liberty,  here, 
can  only  exist  in  fellowship  with  Law.  Whatever  the  glories 
of  our  past  history,  however  grand  our  present,  however  brill- 
iant our  future,  it  is  in  vain  to  suppose  that  American  freedom 
can  be  maintained  except  just  so  long  as  our  people  shall  ex- 
hibit the  capacity  justly  and  intelligently  to  administer,  and 
the  disposition  steadily  and  loyally  to  obey,  the  government  of 
WEITTEN  LAW. 

While  this  last  sheet  is  going  through  the  press,  I  have,  for  the  first  time,  seen 
"  The  Principles  and  Maxims  of  Jurisprudence,"  by  John  George  Phillimore,  Q.  C., 
M. P.,  London,  1856  ;  and  I  can  only, wish  that  I  had  been  able  to  avail  myself  of  it 
at  an  earlier  stage  of  my  work.  Mr.  Phillimore's  thorough  knowledge  and  enlight- 
ened appreciation  of  the  scientific  order  of  the  Roman  law,  and  his  liberal  and 
courageous  recognition  of  the  defects  of  English  jurisprudence,  have  already  been 
made  well  known  by  his  "  Introduction  to  the  Study  and  History  of  the  Roman 
Law,"  London,  1848  ;  but  the  present  work  is  calculated  still  more  strongly  to  turn 
the  professional  mind  of  the  present  age  to  the  comparative  merits  of  the  two 
systems.  The  work  is  a  skillful  selection  of  some  of  the  most  terse  and  profound 
maxims  of  the  Roman  law,  with  comments  on  them  by  the  author,  showing  by  the 
light  of  the  decided  cases  of  English  and  American  law,  the  extent  to  which  the 
principles  of  the  civil  jurisprudence  are  recognized  or  disregarded  by  the  Anglo- 
American  tribunals.  •  Mr.  Phillimore's  work  is  one  eminently  of  a  character  to 
arouse  the  minds  of  the  legal  students  and  practitioners  of  our  time  to  the  true 
dignity  of  the  science  to  which  their  lives  are  devoted.  In  the  present  chaotic 
state  of  our  own  law,  particularly,  nothing  can  be  more  desirable  than  to  keep  in 
as  frequent  recollection  as  possible  the  simplicity,  order,  and  equal  justice  of  the 
great  system  of  jurisprudence  by  which  the  Roman  world  was  governed. 

*  Locke,  Pref..  to  Letter  oil  Toleration. 


GENERAL    INDEX 


INDEX. 


„    When  figures  alone  are  given,  the  reference  is  to  the  author's  text ;   when  an  "  (n) "  is 
added  to  the  number  of  the  page,  the  reference  is  to  the  editor's  notes. 

ABATING  nuisances,  436  (n).     (See  "  Police  Powers.") 

"  ABSENT  person,"  meaning  of,  371  (n). 

"  ACTION,"  meaning  of,  371  (n). 

ACTIONS,  for  violation  of  statutes,  74,  75  (see  "  Remedies  ")  ; — on  Statutes, 
forms  of,  89-91  ; — pending,  effect  of  repeal  on,  113,  114,  115,  109  (n) ; — 
ditto,  effect  of  a  saving  clause,  on,  111 ; — altering  form  of  does  not  impair 
obligation  of  contracts,  614  (n). 

ACTIONS,  LIMITATIONS  of,  83-86.     (See  "  Limitations  of  Actions.") 

ACTS  of  public  officers,  relief  against,  81,  82. 

ADMINISTERING  JUSTICE,  titles  of  laws  relating  to,  525  (n) ;— laws  regu- 
lating mode  of  do  not  impair  obligation  of  contracts,  614  (n). 

ADMINISTRATIVE  proceedings,  summary,  statutes  authorizing,  to  be  strictly 
construed,  302-306*. 

AFFIRMATIVE  LANGUAGE  in  statutes,  effect  of  in  repealing  prior  statutes, 
98  (n),  99  (n).  (See  "  Repeal  ") ;— when  directory,  316  (n). 

AFFIRMATIVE  STATUTES,  29,  30  ;— their  effect  on  the  common  law,  30. 

AGREEMENTS,  to  procure  or  prevent  legislation,  effect  of,  53,  54 ; — in  vio- 
lation of  statutes,  69-74.  (See  "  Contracts.") 

AGRICULTURAL  land,  leases  of,  541. 

ALTERING  the  remedy,  effect  of  on  obligation  of  contracts,  617  (n). 

AMBIGUOUS  words,  225  (n). 

AMEND,  or  repeal  charters,  power  of  Legislature  when  the  right  to  is  reserved, 
620  (n)— 622  (n). 

AMENDATORY  STATUTES,  relate  back  to  time  of  original  act,  68 ;— effect 
of  in  repealing  prior.statutes,  110  (n),  111  (n); — not  retrospective,  162  (n)  ; 
construction  of  words  in,  222  (n)  ; — titles  of,  526  (n). 

AMENDMENT  of  a  statute,  how  far  it  acts  as  a  repeal,  95  (n),  96  (n). 

AMENDMENTS  XlVxn  AND  XVin  of  U.  S.  Const.,  construed  and  discussed, 
563  (n)-566  (n). 

AMENDMENTS  OF  LAWS,  530-533,  531  (n)-532  (n) ;  constitutional  pro- 
visions relating  to,  531  (n) ; — meaning  and  object  of  these  provisions,  532, 
533  ; — construction  of  in  different  States,  532  (n). 

ANCIENT  STATUTES,  class  of,  22  ;— proof  of,  95. 


668  INDEX. 

AND  and  OR,  how  used,  371  (n). 

ANIMALS,  stray,  435  (n).     (See  "  Police  Powers.") 

APPLICATION  to  Legislature  for  the  passage  of  a  statute,  52,  53.       - 

APPRAISEMENT  laws,  effect  on  obligation  of  contracts,  616  (n). 

APPROPRIATION  bills,  539  (n). 

APPROVAL  by  the  governor,  56  (n). 

"  ARBITRATION,"  meaning  of,  371  (n). 

ARREST  for  debt,  abolition  of,  does  not  impair  obligation  of  contracts,  613  (n). 

ASSESSMENTS,  local,  426-434,  426  (n)-429  (n).     (See  " Taxation.") 

ATTAINDER,  bills  of,  in  England,  121  ;— under  U.  S.  Constitution,  557. 

AUSTIN,  John,  analysis  of  his  "Province  of  Jurisprudence,"  187-189. 

AUTHORITY  AND  JURISDICTION  of  statutes,  56-69  ;— in  general  within 

their  own  territory,  51?,   58; — by    international   comity,   50; — among   the 

several  States  of  the  U.  S.  60-65. 
AUTHORITY  to  public  officers,  construction  of  statutes  giving,  329-331. 

BAIL,  excessive,  under  U.  S.  Constitution,  580. 

BANKING  LAWS  to  be  submitted  to  the  people,  539  (n). 

"  BANKING  PRINCIPLES,"  meaning  of,  372. 

BANKING  SYSTEM  of  N.  Y.,  379-383. 

BANKRUPT  laws,  of  the  States,  when  impair  obligation  of  contracts,  606-622, 
606  (n),  607  (n). 

BENTHAM,  his  definition  of  law,  2. 

BIBLE  in  public  schools,  14  (n),  513. 

"  BILLIARDS,"  meaning  of,  373. 

BILLS,  time  in  which  the  governor  may  sign,  356  (n)  ; — to  be  read  three 
times,  539  (n) ; — engrossed,  on  file,  evidence  of  statutes,  55,  55  (n). 

BILLS  OF  ATTAINDER,  in  England,  121 ;—  under  U.  S.  Constitution,  557. 

BLACKSTONE,  his  definition  of  law,  2. 

BLASPHEMY,  14  (n). 

BODY  or  purview  of  a  statute,  described,  45. 

BOUNTIES  to  volunteers,  432  (n).     (See  "  Taxation.") 

"  BRIDGE,"  meaning  of,  371  (n). 

BRIDGES,  a  public  use,  446  (n).  (See  "  Private  Property,  etc.") ;— toll,  indi- 
rect injuries  to,  not  a  taking  of  private  property,  455  (n),  460.  (See  Ibid.} 

"  BURGLARY,"  meaning  of,  373. 

BU  RIAL  of  the  dead,  436  (n).     (See  "  Police  Powers.") 

BURYING  grounds,  a  public  use,  447  (n).     (See  "  Private  Property,  etc.") 

BY-LAWS  of  cities,  &c.     (See  "  Municipal  Ordinances.") 

"CARRYING  on  business,"  meaning  of/ 371  (n). 

CASES  in  which  a  jury  is  not  necessary.  488  (n),  et  seq.  ; — in  equity,  jury  in, 

488  (n). 

"  CASTING  vote,"  meaning  of,  371  (n). 
"  CATTLE,"  meaning  of,  373. 
CAUSE  AND  EFFECT,  connection  of,  355,  356. 


INDEX.  669 

CAUSE,  proximate,  355,  356. 

CEMETERIES,  a  public  use,  447  (n).     (See  "  Private  Property,  etc.") 

'  CETEBtS  PARIBUS,"  meaning  of,  371  (n). 

CHARITIES,  private  statutes  in  relation  to,  140  (n),  141  (n). 

CHARTERS,  of  municipal  corporations  may  be  submitted  to  popular  vote, 
135  (n) ; — of  private  corporations  to  be  strictly  construed,  291-296,  291  (n), 
292  (n) ; — of  private  corporations  are  contracts,  592-599,  585  (n)-588  (n)  ; 
— power  of  Legislature  over,  when  right  to  amend  or  repeal  has  been  re- 
served, 620  (n)-622  (n) ; — subject  to  amendment  or  repeal,  362  ; — titles  and 
subjects  of,  521  (n). 

CHRISTIANITY,  how  far  part  of  the  common  law,  14. 

CICERO,  his  definition  of  law,  2. 

CITIES,  ordinances  of.     (See  "  Municipal  Ordinances.") 

CITIZENSHIP  under  U.  S.  Constitution,  562-568,  562  (n)-566  (n) ;— citizens  of 
the  States,  privileges  and  immunities  of,  563-568  ; — no  rights  protected  except 
those  which  belong  to  citizenship,  567,  568 ; — corporations  not  within  the 
guaranty,  562  (n) ; — negroes  and  mulattos  are,  562  (n).; — construction  of  the 
constitutional  provision  by  the  U.  S.  Supreme  Court,  562  (n) ; — State  laws 
taxing  passengers,  562  (n) ; — and  non-resident  traders,  562  (n) ; — and  freight, 
563  (n);— XlVth  and  XVth  amendments  construed,  563  (n)-566  (n);— ex- 
tent of  the  protection  by  these  amendments,  564  (n),  565  (n);— rights  of  cit- 
izens under  XlVth  amendment,  564  (n),  565  (n) ; — legislative  power  of  Con- 
gress under  the  XV th  amendment,  565  (n),  566  (n) ; — forfeiture  of  citizenship, 
laws  providing  for,  not  ex  post  facto,  559  (n). 

CIVIL  CASES,  jury  in,  486  (n),  487  (n). 

CIVIL  REMEDIES,  laws  affecting,  not  ex  post  facto,  561  (n). 

CLASSES  of  statutes,  21-34; — according  to  the  civil  law  writers,  33,  34. 

CLAUSES  in  statutes,  45-49  ; — interpretation  clauses.  45, 46  ; — saving  clauses, 
47,  47  (n) ; — repealing  clause,  48 ; — other  clauses,  49. 

COLONIAL  laws  of  Mass.,  34-37. 

COMITY  of  nations,  its  effect  on  statutes,  59. 

COMMENCEMENT  of  statutes,  41,  42;  form  in  Great  Britain,  42;— in  U.  S. 
Congress,  42 ;—  in  N.  Y.,  42. 

COMMON  LAW,  a  source  of  the  municipal  law,  4-14; — adopted  by  the 
State  constitutions,  5-12; — when  presumed  to  be  in  force  in  a  foreign  State, 
12,  13  (n) ; — none  of  the  U.  S.,  13  ; — contracts  in  violation  of,  73,  74  ; — 
remedies,  election  between  them  and  statutory  remedies,  75-77 ; — statutes 
in  derogation  of  to  be  strictly  construed,  267-275,  267  (n)  ; — ancient  rule, 
267-272,  267  (n),  268  (n) ;— rule  modified  in  modern  times,  273-275  ;— how 
applied  to  married  woman's  property  acts,  268  (n),  269  (n) ; — other  ex- 
amples, 269  (n) ; — unreasonableness  of  the  rule,  270  (n),  271  (n). 
COMMON  RIGHT,  statutes  in  derogation  of,  to  be  strictly  construed,  296- 

298  ;— examples,  296  (n). 

COMPENSATION  for  taking  private  property  for  public  use,  463-471,  463  (n)- 
467  (n) ; — when  to  be  made,  464-469,  464  (n),  465  (n) ; — case  of  preliminary 


G70  INDEX. 

steps,  surveys,  &c.,  467-469,  465  (n)  ; — whether  must  be  made  prior  to  the 
taking,  468,  469 ; — how  determined.  469—471,  464  (n) ; — whether  by  a  jury, 
470,  471,  464  (n)  ; — must  be  in  money,  471  ; — is  necessary,  463  (n) ;— what 
is  a  just  compensation,  463  (n),  464  (n) ; — no  title  vests  until  payment  or 
tender,  465  (n)  ;  amount  of,  466  (n),  467  (n) ; — for  the  land  actually  taken, 
466  (n) ; — for  the  injuries  to  the  portion  not  taken,  466  (n) ; — set-off  of  ben- 
efits, 467  (n). 

COMPOSITION  of  the  jury,  493  (n). 

COMPUTATION  of  time,  356-358 ;— the  time  in  which  the  governor  may 
sign  bills,  356  (n)  ; — what  days  excluded  and  included,  356,357  ; — "  month," 
meaning  of,  358  ; — "  year,"  meaning  of,  358. 

CONDITION,  statutes  taking  effect  upon  a,  137  (n). 

CONDITIONS,  unreasonable,  when  void,  478  (n). 

CONFISCATION,  when  laws  providing  for,  are  ex  post  facto,  557  (n)-559  (n). 

CONFRONTING  of  witnesses,  548  (n). 

CONGRESS  of  the  U.  S.,  nature,of  its  legislative  power,  549,  550. 

"CONNECTION,"  meaning  of,  371  (n). 

CONSTITUTION,  to  be  interpreted  like  statutes,  19; — statutes  conflicting 
with  to  be  strictly  construed,  2p6,  267 ; — of  a  State,  change  in,  impairing 
obligation  of  contracts,  637,  638 ; — construction  of.  (See  "  Constitutional 
Law  ")  ; — of  U.  S.,  limitations  of  on  legislative  power.  (See  "  U.  S.  Consti- 
tution.") 

CONSTITUTIONAL  LAW,  404-418 ;— divisions  of  the  constitutions,  404, 
405  ; — peculiar  to  the  U.  S.,  405  ; — power  of  the  judiciary  to  construe  con- 
stitutions, 406,  407  ; — bills  of  right  in  constitutions,  407,  408  ; — general  rule 
of  construction,  409,  410  ; — when  the  violation  is  clear,  411,  412; — contem- 
poraneous and  legislative  construction,  412; — the  whole  constitution  to  be 
considered,  413 ; — statutes  void  in  part,  413,  414,  413  (n)  ;  strict  and  liberal 
construction,  416-418; — implied  restrictions  in  constitutions,  418  (n) ; — 
schedules  or  ordinances,  418  (n)  ; — when  constitution  executes  itself,  418  (n) ; 
a  source  of  the  municipal  law,  15-19. 

CONSTITUTIONAL  MAJORITIES,  533,  534,  533  (n)  ;  provisions  of  certain 
constitutions,  533,  534 ; — majority  of  two-thirds,  533  (n),  534  ;  majority  of 
electors,  533  (n)  ; — how  ascertained,  54,  55. 

CONSTITUTIONAL  PROVISIONS,  waiver  of,  88,  88  (n) ;— defining  the  de- 
partments of  government,  132,  133; — miscellaneous,  538-541,  538  (n)-540 
(n)  ; — when  directory  and  when  mandatory,  317  (n). 

CONSTRUCTION  OF  CONSTITUTIONS.     (See  «  Constitutional  Law.") 

COiNSTRUCTION  OF  GRANTS  and  patents  of  land.  (See  "  Grants  of  Land.") 

CONSTRUCTION  OF  MUNICIPAL  ordinances.  (See  "Municipal  Ordinances.") 

CONSTRUCTION  OF  STATUTES,— power  held  by  Roman  Emperor,  174  ;— 
origin  and  progress  of  power  held  by  courts,  174-179  ; — power  belongs  to 
the  courts,  122,  179,  180 ; — limits  on  the  power  of,  183, 184 ; — general  rules 
of,  190-249; — object  of  construction  to  ascertain  the  intention  of  the 
Legislature,  193-197 ; — only  possible  when  the  language  is  ambiguous, 


INDEX.  671 

195  ; — means  to  be  employed,  198  ; — means  must  be  found  in  the  statute 
itself,  199-201  ;— the  whole  statute  to  be  considered,  199-201,  199  (n),  201 
(n),  226  (n)  ; — and  the  whole  of  a  clause  or  sentence,  201  (n) ; — 
effect  must  be  given  to  every  clause,  200  (n)  57— intent,  how  far  ascertained 
from  extrinsic  facts,  202-205 ; — statutes  in  pari  materia,  209-212  ; — to  be 
taken  together,  209-212,  209  (n)  ;  what  are,  210  ; — constitutional  provisions 
in  pari  materia,  209  (n) ; — statutes  on  same  subject  passed  at  same  session, 
209  (n) ; — 'but  the  plain  meaning  of  any  statute  cannot  be  overcome  by  this 
rule,  2r10  (n)  ; — effect  of  a  change  in  the  language  from  a  prior  statute,  212 
(n) ; — contemporaneous  construction,  effect  of,  212,  213,  227  (n) ; — legisla- 
tive construction,  214,  227  (n) ; — judical  construction  to  be  adhered  to,  214, 
215; — usage,  effect  of,  215-218; — usage  of  a  particular  place,  216  (n)  ; — 
construction  of  the  particular  language  of  a  statute,  219-230,  223  (n)-230 
(n) ; — words  to  be  taken  in  their  ordinary  sense,  220,  223  (n),  224  (n)  ; — 
rule  of  noscitur  a  sociis,  220  (n)  ; — technical  words,  221-223,  224  (n),  225 
(n) ; — words  in  an  amendatory  statute,  222  (n) ; — ambiguous  words,  225 
(n)  ; — grammar  and  punctuation,  225  (n)  ; — general  scope  of  the  statute, 

225  (n),  226  (n) ; — limiting  clause,  226  (n) ;— subsequent  clause,  226  (n)  ;— 
consequences  of  a  particular  construction,  226  (n) ; — rule  ut  res  magis  valeat, 

226  (n) ; — presumptions,  228    (n) ; — implication,  228    (n)  ; — of  a   revision, 
229   (n),  365,  366,  365   (n) ;— of  reference  statutes,  229  (n) ;— of  similar 
statutes,  230  (n)  ;— Vattel's  rules,  230-243; — Domat's  rules,  243-246;— 
Lieber's  rules,  246-248  ;— Phillimore's  rules,  248,  249  ;— strict  and  liberal 
construction,  250-328.     (See    "  Strict    Construction,"    and    "  Liberal    Con- 
struction ") ; — construction  contrary  to  the  language  of  the  statute,  examples 
of,  251-266; — author's  general  rules,  325,  326; — statutes   giving   authority 
to   public   officers,   329-331; — of  "quorum,"    331,  331    (n) ; — of  revenue 
laws,  332 ; — of  penal   laws,   333-336  ;— of  laws   affecting   the   State,   337, 
337  (n) ;— of  general  words,  360,  361,  360  (n),  361  (n)  ; — of  State  statutes 
by  U.  S.  courts,  366-370,  367  (n) ;— of  particular  words,  371-379. 

CONSTRUCTION  OF  TREATIES.     (See  "Treaties."-) 

CONSTRUCTION  OF  U.  S.  CONSTITUTION,  551-556 ;— political  rules, 
551 ; — unconstitutionality  must  be  clear,  552  ; — contemporaneous  interpreta- 
tion, 552; — extrinsic  facts  not  admitted,  552,  553; — words  to  be  taken  in 
their  natural  sense,  553 ; — transposition  of  clauses,  553,  554  ; — acts  void  in 
part  and  valid  in  part,  554; — effect  of  unconstitutionality,  554; — power  of 
the  U.  S.  judiciary,  555. 

CONTEMPORANEOUS  construction,  212,  213,  227  (n). 

CONTRACTS,  to  procure  or  prevent  legislation,  53,  54 ; — in  violation  of 
statutes,  69-74,  337-341  ;— when  void,  69,  70,  338-341 ;— of  penal  statutes, 
71,  339  ; — valid  by  the  law  of  the  place  where  made,  71,  72  ; — in  violation  of 
revenue  statutes,  72,  340  ; — marriage,  73  ; — distinction  between  contracts 
opposed  to  the  common  law,  and  those  opposed  to  statutes,  73,  74 ; — in 
violation  of  Sunday  law,  341 ; — What  contracts  are  within  the  provision  of 
the  U.  S.  Constitution,  in  relation  to  impairing  the  obligation  of  contracts, — 


G72  INDEX. 

all  private,  executory  and  executed,  581-590  ; — legislative  grants  are,  590-- 
592  ; — charters  of  private  corporations  are,  592-599,  585  (n),  586  (n) ; — and 
charters  exempting  from  taxation,  597-599,  586  (n)-588  (n) ; — such  charters 
to  be  strictly  construed,  595 ; — public  offices  are  not,  600,  585  (n) ; — 
municipal  ordinances  are  not,  600; — marriage  is  not,  601-603,  581  (n),  582 
(n) ; — charters-of  municipal  corporations  are  not,  582  (n),583  (n); — contracts 
made  by  municipal  corporations,  how  far  protected,  583  (n),  584  (n) ; — 
permission  to  sue  the  State  is  not,  534  (n) ; — licenses  are  not,  584  (n),  585 
(n)  ; — stipulations  in  charters  restraining  the  exercise  of  the  right  of  eminent 
domain,  588  (n) ; — ditto  of  police  powers,  588  (n) ; — miscellaneous  cases, 
588  (n) ; — what  is  included  within  a  contract,  589  (n)  ; — obligation  of,  defined, 

.  603  (n),  604  (n)  ;— what  State  laws  impair,  603-642,  605  (n)-622  (n). 
(See  <k  Obligation  of  Contracts.") 

COPYRIGHT  in  statutes,  116-118. 

"  CORPORATE  name,"  meaning  of,  373. 

CORPORATION,  contract  in  violation  of  charter  of,  73 ; — private,  charter  of 
to  be  strictly  construed,  291-296,  291  (n),  292  (n) ; — stututes  in  relation  to, 
subject  to  amendment  or  repeal,  362 ; — delegation  to,  of  power  to  take  pri- 
vate property,  452-454,  452  (n) ; — titles  and  subjects  of  charters  and  of  stat- 
utes relating  to,  521  (n)-525  (n) ; — but  one  to  be  created  at  a  time,  538  (n) ; 
— no  special  act  of,  539  (n) ; — do  not  possess  the  privileges  and  immunities 
of  citizens,  562  (n) ; — private,  charters  of  and  statutes  relating  to,  when  con- 
tracts, 592-599,  585  (n)-588  (n) ; — municipal,  charters  of,  not  contracts 
582  (n)-584  (n) ; — private,  when  laws  affecting  them  impair  the  obligation 
of  contracts,  607  (n)-609  (n) ; — private,  power  of  Legislature  over  their 
charters,  when  right  to  amend  or  repeal  has  been  reserved,  620  (n)-6'22  (n) ; 
— municipal,  ordinances  of,  See  "  Municipal  Ordinances." 

COSTS,  statutes  giving,  how  construed,  307. 

COUNTY,  jury  of,  493  (n) ;— taxation,  504  (n).     (See  "  Taxation.") 

COURTS,  power  to  construe  statutes,  18,  174-179 ; — power  to  pronounce 
statutes  void,  independently  of  constitutional  restrictions,  123-132; — power 
to  decide  upon  the  constitutionality  of  statutes,  180-182,  406,  407 ; — their 
power  in  interpreting  limited,  183,  184; — their  practice  in  condemning  cer- 
tain statutes,  185, 186  ; — their  power  to  disregard  the  language  of  statutes 
examined,  251-266  ; — inferior,  jury  in,  490  (n),  491  (n) ; — changing  the  or- 
ganization of,  does  not  impair  the  obligation  of  contracts,  614  (n). 

COURTS  MARTIAL  ;  militia,  trial,  fine,  and  imprisonment  by  in  peace,  does 
not  violate  the  guaranty  of  due  process  of  law,  476  (n). 

CRIMES,  planned  and  executed  in  different  States,  effect  of,  64. 

CRIMINAL  cases,  jury  in,  487  (n),  488  (n). 

CRUEL  punishments,  under  U.  S.  Constitution,  580. 

CUMULATIVE  remedies  and  penalties,  341-345 — when  statutory  remedy  is 
exclusive  or  is  cumulative,  341-345  ; — when  exclusive,  341  (n). 

CURATIVE  statutes,  power  of  Legislature  to  pass,  141  (n)-144  (n) ; — effect 
on  existing  judgments,  ib.  ; — validating  defective  proceedings  of  municipal 


INDEX.  673 

corporations,  ib. ; — and  sales  of  infants'  estates,  ib. ; — and  deeds  of  married 
women,  ib. ; — and  tax  proceedings,  ib. ; — cannot  impair  vested  rights,  ib. 

"  CURTILAGE,"  meaning  of,  374. 

CUSTOM,  a  source  of  the  municipal  law,  34. 

DAYS,  what  included  and  what  excluded,  356,  357. 

DEAD,  burial  of,  436  (n).    (See  "  Police  Powers.") 

DEBT,  imprisonment  for,  540  (n). 

DECLARATORY  statutes,  28,  29;— effect  of  iff  construction,  227  (n). 

DEFINITION  of  municipal  law,  2. 

DELEGATION  of  power  to  take  private  property  for  public  use,  452-454, 
452  (n),  453  (n).  (See  "  Private  Property,  etc.") 

"  DENY,"  meaning  of,  374. 

DEPOTS  and  shops,  etc.,  for  railroads,  a  public  use,  447  (n).  (See  "  Private 
Property,  etc.") 

"  DESCENT,"  meaning  of,  374. 

DESCRIPTION,  false,  effect  of,  354,354  (n),  355  (n). 

DIRECTORY  AND  MANDATORY  statutes,  316-325;— meaning  of  "direc- 
tory," 316-318  ; — when  statutes  and  provisions  are  directory,  319-325 ; — 
effect  of  affirmative  or  negative  words,  319  ; — affirmative  words  without  neg- 
ative, when  directory,  316  (n) ; — power  given  to  public  officers  concerning 
rights  of  third  persons,  mandatory,  316  (n),317  (n) ; — when  constitutional 
provisions  are  directory  or  mandatory,  317  (n) ; — test  suggested,  317  (n). 

DIVISION  of  governmental  powers  in  England  and  the  U.S.,  119-122;  — 
ditto,  made  by  the  American  Constitutions,  132, 133. 

DIVORCES,  516,  517  ; — constitutional  provisions  relating  to,  ib. 

«  DOG  LAWS,"  436  (n).     (See  «  Police  Powers. ")     . 

DOMAT,  his  rules  of  construction,  243-246. 

DOUBLE  taxation,  508  (n),  509  (n).     (See  "  Taxation.") 

DOWER,  when  statutes  affecting,  may  be  retrospective,  162  (n). 

DRAINAGE,  means  of,  a  public  use,  446  (n),  447  (n).  (See  "  Private  Prop- 
erty, etc.") 

DUE  PROCESS  OF  LAW,  138-152, 138  (n)-144  (n) ;  474-481';  -no  power 
in  Legislature  to  pass  judicial  acts,  general  rule,  139-146,  138  (n),  139  (n). 
(See  "  Legislature,  Power  of,  etc.")  ;— retroactive  effect  of  laws  on  vested 
rights,  346  (n).  (See  "Retrospective  Effect  of  Laws  ");  — Constitutional 
provisions  guaranteeing,  474  (n),  475  (n)  ;— "  law  of  the  land,"  meaning  of, 
475-481,— and  of  "due  process  of  law,"  ii. ; — what  they  secure,  475  (n), 
476  (n),— and  examples, 476  (n),  477  (n) ;— courts  martial  in  the  militia,  trial 
and  conviction  by  in  peace,  valid,  476  (n)  ; — and  service  by  publication  in  civil 
causes,  476  (n),  477  (n)  ; — and  summary  proceedings  in  tax  and  revenue  col- 
lection, 477  (n)  ; — unreasonable  conditions  cannot  be  imposed  by  the  Legisla- 
ture, 478  (n)  ; — changing  rules  of  evidence,  when  valid,  478  (n) ;  — limitations 
of  actions,  when  valid,  478  (n) ; — provision  of  U.  S.  Constitution,  574-577. 

"  DWELLING-HOUSE,"  371  (n). 
43 


674  INDEX. 

EASEMENTS,  imposing  additional,  when  a  taking  of  private  property  for 
public  use,  458  (n),  459  (n) ;— viz.,  changing  highways  into  turnpikes  or  plank- 
roads,  458  (n),— steam  railroads  in  highways,  458  (n),— horse  railroads  in 
highways,  459  (n). 

EDUCATIONAL  institutions,  private,  local  taxation  for,  431  (n). 

EFFECT  of  repealing  statutes,  see  "  Repeal,  effect  of." 

EJUSDEM  GENERIS,  rule  in  respect  to  use  of  general  words,  360  (n). 

ELECTION  between  remedies  for  violation  of  statutes,  75-77. 

ELECTORS,  majority  of,  meaning  of,  533  (n). 

EMINENT  DOMAIN,  see  "  Private  Property,  etc."  ;— statutes  restraining  the 
exercise  of  the  right  of,  when  contracts,  588  (n),— effect  of  statutes  exercising 
the  right  of,  on  the  obligation  of  contracts,  638,  639,  607  (n),  608  (n),  609  (n). 
(See  "  Obligation  of  Contracts.") 

"  ENCLOSURE,"  meaning  of,  371  (n). 

ENGROSSED  bills  on  file,  how  far  evidence  of  statutes,  55,  55  (n). 

"EQUAL  and  uniform"  taxation,  504-510,  503  (n)-506  (n).  (See  "  Taxa- 
tion.") 

EQUITABLE  CONSTRUCTION,  contrary  to  the  language  of  the  statute,  dis- 
cussed and  condemned,  251-266; — general  rules  , and  examples,  308-316, 
308  (n),  311  (n),  312  (n).  (See  "  Liberal  Construction.") 

EQUITY,  no  relief  in,  against  a  positive  statute,  83. 

:EQUITY  CASES,  jury  in,  488  (n). 

EQUITY  OF  A  STATUTE,  311-315. 

"  ERECTION,"  meaning  of,  371  (n). 

EVIDENCE,  statutes  changing  rules  of,  when  valid,  478  (n) ; — ditto,  do  not 
impair  obligation  of  contracts.  614  (n). 

EXCEPTIONS,— in  statutes,  nature  and  effect  of,  50  ;— how  pleaded,  93  ;— 
implied  exceptions  to  general  language,  360  (n). 

EXCESSIVE  bail  and  cruel  punishments,  under  U.  S.  Constitution,  580. 

EXEMPTIONS, — statutes  conferring,  to  be  strictly  construed,  266-268 ; — 
from  taxation,  297  (n),  510-512,  504  (n),  505  (n)  (See  "  Taxation  ") ;— ditto, 
granted  to  corporations,  when  contracts,  597-599,  586  (n)-588  (n).  (See 
"  Obligation  of  Contracts"  and  "Contracts.") 

EXEMPTION  LAWS,  effect  of  on,  obligation  of  contracts,  612  (n)— ditto  of 
"  homesteads,"  612  (n),  613  (n).  (See  "  Obligation  of  Contracts.") 

EX  POST  FACTO  laws,  557-560,  557  (n)-560  (n) ;  meaning  of,  ^./—for- 
feitures and  confiscations,  557  (n)-559  (n) ; — test  oaths,  557  (n),  558  (n) ; — 
ditto,  as  a  condition  of  voting,  558  (n) ; — forfeiture  of  land  as  a  punishment 
for  rebellion,  558  (n) ; — confiscation  acts  of  Congress,  559  (n); — forbidding 
the  sale  of  liquors  559  (n) ; — forfeiture  of  citizenship,  559  (n) ; — registration 
of  voters,  559  (n) ; — renewal  of  penalty,  559  (n) ; — increase  or  change  of  pen- 
alty, 559  (n),  560  (n) ; — changes  in  procedure,  etc.,  560  (n),  561  (n) ; — civil 
remedies,  561  (n). 

EXPRESS  repeal,  95,  96.     (See  "  Repeal.") 

"EXPRESSIO  UNI  US,"  rule  in  relation  to,  31  (n). 


INDEX.  675 

"FALSA  DEMONSTRATIO  NON  NOCET?  354,  355  (n). 

FALSE  description,  effect  of,  354,  354  (n). 

FIFTEENTH  amendment  of  the  U.  S.  Constitution,  discussed,  563  (n)-566  (n). 

FINES  and  forfeitures,  power  to  remit,  559. 

"  FIRE- WORKS,"  meaning  of,  371  (n). 

FLOWING  lands,  a  taking  of  private  property,  455  (n). 

FOREIGN  LAW,  presumption  in  reference  to  the  nature  of,  12,  13  (n) ; — 
contracts  valid  by,  but  void  by  that  of  the  forum,  71,  72. 

FOREIGN  STATUTES,  proof  of,  94,  95 ;— interpretation  and  proof  of,  362- 
364. 

FORFEITURES  created  by  statute,  nature  and  effect  of,  78; — and  confisca- 
tions, when  ex  post  facto,  557  (n)-559  (n). 

FORMS  of  actions  on  statutes,  89-91.     (See  "  Pleading.") 

FORTS,  a  public  use,  447  (n). 

FOURTEENTH  amendment  of  the  U.  S.  Constitution,  discussed,  563  (n)- 
566  (n). 

FRANCHISES,  grants  of  to  be  strictly  construed,  291-296. 

FRAUD  in  procuring  statutes,  effect  of,  54  (n). 

FREEDOM,  religious,  571 ;— of  speech,  571. 

"  FROM,"  meaning  of,  374. 

FUGITIVES  from  justice,  under  U.  S.  Constitution,  568,  569;— from  service, 
ditto,  569,  570. 

GAS  companies,  a  public  use,  446  (n). 
"GENERAL,"  meaning  of,  371  (n). 

GENERAL  LAWS,  must  have  uniform  operation,  constitutional  provisions 
relating  to,  534  (n)  ; — what  are,  534  (n) ; — construction  of  the  provisions, 

534  (n),  535  (n) ; — special  laws  forbidden  when  general  ones  are  possible, 

535  (n),  536  (n). 

GENERAL  RULES  of  construction,  325,  326. 

GENERAL  WORDS,  how  qualified  by  particular  words,  360,  361 ;— con- 
struction of,  360  (n); — how  restrained  to  things  of  the  same  kinds,  rule  of 
ejusdem  generis,  360  (n)  ; — implied  exceptions  to,  360  (n) ; — limited  by  the 
object  of  the  statute,  361  (n). 

GEORGIA,  law  of  as  to  taxation,  510  (n). 

GOOD  FAITH,  no  excuse  for  the  violation  of  a  statute.  79,  80. 

GOVERNMENT,  construction  of  statutes  affecting  the,  337 ; — when  bound, 
337  (n). 

GOVERNOR,  approval  of  statutes  by,  56  (n) ; — time  given  to,  in  which  to 
sign  bills,  356  (n). 

"  GRAIN,"  meaning  of,  371  (n). 

GRAMMAR,  rules  of,  in  construction,  225  (n). 

GRANTS,  legislative,  when  contracts,  590-592,  594.  (See  "Obligation  of 
Contracts.") 

GRANTS  OF  LAND,  387-392 ;— tenure  from  the  Government,  387  ;— royal 


C76  INDEX. 

grants,  389; — colonial  grants,  389  ; — power  of  the  U.  S.  and  the  State  gov- 
ernments over,  390  ; — N.  Y.  law  concerning,  390,  391  ; — grants  of  water, 
391,  392. 

HABEAS  CORPUS,  writ  of,  under  U.  S.  Constitution,  556. 

HEALTH,  public,  means  of  preserving  a  public  use,  446  (n),  447  (n).     (See 

"  Private  Property,  etc.,"  and  "  Police  Powers.") 
"  HEIRS,"  meaning  of,  371  (n). 
«  HIGH  SEAS,"  meaning  of,  374. 
HIGHWAYS,  a  public  use,  446  (n) ; — changed  to  turnpikes  or  plank-roads, 

458  (n)  ;— railroads  in,  458  (n),  459  (n).     (See  "  Private  Property,  etc."  );— 

towns  compelled  by  Legislature  to  construct,  446  (n). 
"  HOME,"  meaning  of,  371  (n). 
HOMESTEAD   exemptions,  effect  of,  on   obligation  of  contracts,  612   (n), 

613  (n). 

HORSE  RAILROADS  in  highways,  458  (n),  459  (n). 
"HOUSE,"  meaning  of,  372  (n). 

IMPAIRING  the- obligation  of  contracts.     (See  "Obligation  of  Contracts.") 

IMPLICATION,  repeal  by,  97-107  (See  "Repeal  by  Implication") ;— effect  of 
in  construction,  228  (n). 

IMPLIED  exceptions  to  general  words,  360  (n). 

IMPLIED  REPEAL.     (See  "Repeal  by  Implication.") 

IMPRISONMENT  for  debt,  540  (n). 

"  IMPROVIDENCE,"  meaning  of,  374. 

INCORPORATION,  special  acts  of,  forbidden,  539  (n). 

INDIANA,  law  as  to  taxation,  510  (n). 

INDICTMENT,  based  on  statutes,  forms  of,  91,  92 ; — ditto,  when  based  on  a 
proviso  or  exception,  93 ;  provisions  of  U.  S.  Constitution  in  relation  to.  con- 
strued, 547  (n)  ; — these  provisions  not  addressed  to  the  State  Legislatures 
and  governments,  547  (n). 

INFANTS,  statutes  in  relation  to,  81 ; — power  of  Legislature  over  their  estates, 
141  (n)-143  (n),  147-151. 

INFERIOR  COURTS,  jury  in,  490  (n)-492  (n).     (See  "Jury  Trial.") 

INJURIES,  indirect  and  consequential  to  property,  whether  a  taking  of  private 
property,  457-461,  455  (n)-457  (n).  (See  "  Private  Property,  etc.") 

"  INLAND  navigation,"  meaning  of,  372  (n). 

INSOLVENT  laws  of  the  States,  when  they  impair  the  obligation  of  contracts, 
606-622,  606  (n),  607  (n).  (See  "  Obligation  of  Contracts.") 

INTENTION  of  the  Legislature, — the  object  of  all  construction  of  statutes, 
193-197; — to  be  ascertained  and  to  govern,  195-197;  to  be  ascertained 
from  the  whole  statute,  199-201,  199  (n),  201  (n) ;— effect  to  be  given  to 
•every  clause,  200  (n) ; — technical  or  popular  sense  of  words,  201  (n) ; — effect 
to  be  given  to  every  part  of  a  clause  or  sentence,  201  (n) ; — how  far  intent 
ascertained  from  extrinsic  facts,  202-205  ; — to  be  chiefly  ascertained  from 


INDEX.  677 

the  statute  itself,  205-208; — sometimes  declared  by  the  courts  contrary  to 
the  language  of  the  statute,  251-266  ; — when  to  be  followed  rather  than  the 
literal  meaning,  255  (n) ; — general  rules  for  ascertaining,  325,  326; — mean- 
ing of,  327,  328. 

"  INTERNAL  improvement,"  meaning  of,  372  (n). 

INTERNATIONAL  comity,  its  effect  on  statutes,  59. 

INTERPRETATION,  of  statutes,  treaties,  etc.,  see  "  Construction." 

INTERPRETATION  CLAUSE,  effect  of,  45,  46. 

INTOXICATING  liquors,  regulating  sale  of,  436  (n).    (See  "  Police  Powers.") 

IOWA,  law  of,  as  to  taxation,  509  (n). 

IRREGULARITIES  in  judicial  and  other  proceedings,  power  of  Legislature  to 
amend,  141  (n)-144  (n),  147-151. 

JEOPARDY,  572,  573,  572  (n)-575  (n) ;  provisions  of  State  constitutions  re- 
specting, 572  (n) ; — when  it  begins,  573  (n) ; — a  new  trial  may  be  had,  when 
the  jury  fail  to  agree,  573  (n), — for  the  sickness  of  a  juror  or  judge,  573  (n), — 
by  the  ending  of  the  term,  574  (n), — for  the  misconduct  of  jurors,  574  (n),^ 
for  defect  in  the  indictment,  574  (n) ; — new  trial  at  the  instance  of  the  pris- 
oner, 574  (n) ;  examples  of  the  general  rule,  574  (n),  575  (n) ; — identity  of 
offences,  575  (n). 

JOINT  and  several  penalties  for  a  violation  of  statutes,  79. 

JOURNALS  of  the  Legislature,  how  far  evidence  of  the  passage  of  statutes,  55  (n). 

"  JUDGMENT  debtor,"  meaning  of,  372  (n). 

JUDGMENTS,  power  of  Legislature  over,  141  (n)-144  (n). 

JUDICIAL  ACTS,  passed  by  Legislature,  when  void,  139-146,  138  (n),  139 
(n) ;  what  may  be  passed  by  the  Legislature.  (See  "  Legislative  Power  to 
pass  Judicial  Acts.") 

JUDICIAL  NATURE  of  certain  classes  of  statutes,  138-152. 

JUDICIAL  POWER,  division  of  in  England  and  the  U.  S.,  119-122  ;— over 
statutes  independent  of  constitutional  restrictions,  123-132; — to  construe 
statutes,  origin  of,  174-179  ; — is  established,  179,  180  ; — to  decide  upon  the 
constitutionality  of  statutes,  180-182; — to  construe  statutes  is  limited,  183, 
184  ; — to  construe  contrary  to  the  language  of  the  statute,  discussed,  251-266. 

JUDICIAL  PROCEEDINGS,— effect  of  a  repeal  on  those  pending,  109  (u), 
111-115 ; — statutes  authorizing  summary,  strictly  construed,  299-302 ; — faith 
and  credit  to  be  given  to  those  of  the  States,  56  J,  562,  562  (n). 

JUDICIARY,  their  power  to  construe  statutes,  18  ; — their  power  to  pronounce 
statutes  void,  406,  407  ; — their  power  to  determine  whether  a  use  is  public, 
443  (n),  444  (n) ; — constitutional  provisions  respecting,  535-537  ; — of  the  U. 
S.,  their  power  to  decide  upon  the  U.  S.  Constitution,  555. 

JURISDICTION  of  statutes,  56-69  ; — in  general,  within  the  national  territory, 
59  ; — by  international  comity,  59 ; — among  the  States,  60-65. 

JURY,  composition  of,  493  (n) ; — of  the  county  or  vicinage,  493  (n) ; — when 
may  be  discharged,  and  the  prisoner  be  tried  the  second  time,  573  (n),  574 
(n).  (See  "  Jeopardy.") 


678  INDEX. 

JURY  TRIAL,  482-498,  482  (n)-495  (n) ;  provisions  of  State  constitutions, 
criminal  trials,  483  (n),  484  (n),  civil  trials,  484  (n)-486  (n) ; — general  im- 
port of  the  guaranty,  483-495  ; — may  be  regulated  by  statute,  496 ; — in  what 
classes  of  cases  secured,  496,  497  ; — province  of  the  court,  498 ; — general 
principles  of  construing  the  guaranty,  486  (n) ; — in  civil  cases,  486  (n),  487 
(n) ; — in  criminal  cases,  487  (n),488  (n) ; — classes  of  cases  in  which  not  neces- 
sary, 488  (n),  et  seq. ; — in  equity  cases,  488  (n),  and  equitable  statutory  pro- 
ceedings, 488  (n),  489  (n) ; — how  far  necessary  in  statutory  proceedings,  489 
(n), — and  in  special  proceedings,  private,  490  (n), — and  in  ditto,  public,  490  ; 
effect  of  enlarging  jurisdiction  of  inferior  courts,  490  (n), — and  of  jury  on 
appeal,  491  (n) ; — how  far  necessary  in  trials  for  minor  offences,  etc.,  491  (n), 

492  (n) ; — and  in  preliminary  proceedings,  492  (n) ; — composition  of  the  jury, 

493  ;  — unanimity  of  the  verdict,  493  (n) ; — jury  of  the  county  or  vicinage, 
493  (n)  ; — miscellaneous  incidents,  493  (n),  494  (n) ; — waiver  of,  494  (n), 
495  (n) ; — under  U.  S.  Constitution,  577-579. 

JUSTICE,— the  administration  of,  titles  of  laws  regulating,  525  (n)  ;— fugitives 
.   from,  568, 569. 
"  JUSTIFIABLE  cause,"  meaning  of,  374. 

"  LABORER,"  meaning  of,  372  (n). 

LAND,  grants  or  patents  of,  387-392.     (See  "  Grants  of  Land.") 

LANDS,  interfering  with  access  to,  whether  a  taking  of  property,  456  (n), 
457  (n)  ;— flowing  of,  ditto,  455  (n).  (See  "  Private  Property,  etc.")  * 

LANGUAGE  of  a  statute,  construction  of,  219-230.  (See  "  Construction  of 
Statutes") ; — power  of  courts  to  disregard,  discussed,  251-266. 

LAST  statute  controls,  353. 

LAW,— of  a  foreign  state,  presumption  as  to  its  nature,  12, 13  (n)  ;— what  sub- 
jects can  be  embraced  within,  134. 

LAW  OF  THE  LAND.     (See  «  Due  Process  of  Law.") 

LAWS,— submission  of  to  popular  vote,  135-138, 135  (n)  ;  — to  take  effect  on  a 
contingency,  137  (n) ; -Titles  and  subjects  of,  517-530,  518  (n)-530  (n).  (See 
'•  Titles  and  Subjects  ")  ;— Amendments  of,  (see  "Amendments  of  Laws")  ;  — 
General,  (see  "  General  Laws  ")  ;— Special,  forbidden  when  general  ones  are 
practicable,  535  (n),  536  (n)  \—Ex  post  facto,  (see  "  Ex  post  facto  Laws  ")  ;  — 
Impairing  the  obligation  of  contracts,  (see  "Obligation  of  Contracts.") 

LEASES  of  agricultural  land,  541. 

LEGISLATIVE  CONSTRUCTION,  effect  of,  214, 227  (n). 

LEGISLATIVE  POWER,  separation  of,  from  the  judicial,  119,e*  seq.;— over 
bills  of  attainder  in  England,  121  ;— independent  of  constitutional  restric 
tions,  123-132, 154-159  ;— limitations  on  by  State  Constitutions,  (see  "Con- 
stitutional Law  ") ;  — of  Congress,  nature  of,  549,  550. 

LEGISLATORS,  motives  of,  cannot  be  inquired  into,  54  (n). 

LEGISLATURE,— supremacy  of,  123-132, 154-159  ;— referring  a  statute  to  a 
popular  vote,  135-138, 135  (n)  ; — has  no  power  to  pass  judicial  acts,  139- 
146,  138  (n),  139  (n)  ;— examples,  145, 146, 138  (n),  139  (n)  ;-may  authorize 


INDEX.  079 

courts  to  reopen  a  case,  139  (n) ;  —  may  pass  certain  quasi  judicial  acts, 
139  (n);— may  pass  private  statutes  in  relation  to  persons  not  sui  juris, 
charities,  etc.,  140  (n),  141  (n),  147-151  ;— power  to  pass  curative  statutes, 
and  their  effect,  141  (n),-144(n), — viz.,  on  existing  judgments,  ib., — and  in 
legalizing  defective  proceedings  of  municipal  corporations,  ib., — or  of  married 
women,  ib., — or  of  tax  proceedings,  ib., — or  of  sales  of  infant's  real  estate,  ib., 
—  or  of  municipal  subscriptions,  ib.,— but  cannot  disturb  vested  rights,  ib.,— 
power  to  authorize  sale  of  property  of  infants,  married  women,  or  by  trus- 
tees, 147-151 ;— intention  of  to  be  ascertained  and  to  govern,  195-197 ;— no 
power  to  decide  finally  whether  a  use  is  public,  443  (n),  444  (n); — sole 
power  to  decide  as  to  the  necessity  of  taking  private  property  if  the  use  is 
public,  444,  444  (n)  ;— delegation  of  this  power,  445  (n),  446  (n)  ;  — no  power 
to  take  property  for  a  private  use,  446-451 ;— may  compel  towns  to  con- 
struct highways,  446  (n)  ;— grants  by,  590-592, 594;— power  over  corpora- 
tions when  right  to  repeal  or  amend  has  been  reserved,  620  (n), — 622  (n)  ; 
power  over  vested  rights,  see  "Vested  Rights ;" — power  to  pass  retrospect- 
ive laws,  see  "  Retrospective  Laws." 

"  LESSEE  "  of  a  railroad,  meaning  of,  372  (n). 

LIBERAL  CONSTRUCTION,  308-316;— general  rule,  308-310  ;— examples, 
of,  308  (n),  311  (n),  312  (n),  312-315  ;— equity  of  a  statute,  311-315. 

LICENSE  LAWS,  effect  of  repeal  of,  109  (n);— submission  of  to  popular 
vote,  136  (n) ;— in  general,  436  (n).  (See  "  Police  Powers.") 

LICENSES,  5C3  (n),  504  (n).  See  "  Taxation ;"— not  contracts,  584  (n), 
585  (n). 

LIBBER'S  rules  of  construction,  246-248. 

LIMITATIONS  OF  ACTIONS,  statutes  of,  83-86 ;— effect  of  a  repeal  of,  109 
(n)  ; — when  retrospective,  161  (n),  162  (n) ; — when  valid  and  operative,  478 
(n) ; — effect  of  on  obligations  of  contracts,  634-637,  613  (n). 

LIMITING  clause,  construction  of,  226  (n). 

LIQUORS,  laws  prohibiting  sale  of,  not  ex  post  facto,  559  (n). 

LITERAL  meaning,  when  not  to  be  followed,  255  (n). 

LOCAL  ASSESSMENTS,  426-434,  426  (n)-429  (n). 

LOCAL  LAWS,  submission  of,  to  popular  vote,  135  (n),  136  (n). 

LOCAL  STATUTES,  titles  and  subjects  of,  528  (n),  529  (n). 

LOCAL  TAXATION,  429  (n)-432  (n);— in  aid  of  railroads,  429  (n)-43l 
(n) ; — in  aid  of  educational  institutions,  431  (n) ; — for  bounties  to  volunteers, 
432  (n)  ; — for  other  local  purposes,  431  (n),  432  (n). 

LOCKE'S  opinion  on  the  power  of  legislatures,  123,  124. 

"  LOWEST  bidder,"  meaning  of,  372  (n). 

MAJORITIES',  required  by  the  Constitution,  533,  534,  533  (n) ;— how  ascer- 
tained and  proved,  54,  55,  55  (n) ; — of  two-thirds,  meaning  of,  533  (n),  534  ; 
— "majority  of  electors,"  meaning  of,  533  (n).  (See  "Constitutional  Major- 
ities.") 

"  MALICIOUSLY,"  meaning  of,  375. 


680  INDEX. 

MANDATORY  statutes.     (See  "  Directory  and  Mandatory  Statutes.") 

MARRIAGE,  solemnized  in  violation  of  statute,  73  ; — not  a  contract,  601-603, 
581  (n),  582  (n).  (See  "  Obligation  of  Contracts.") 

MARRIED  WOMEN,  deeds  of,  power  of  Legislature  to  validate,  142  (n), 
147-151  ; — their  separate  property,  statutes  relating  to,  how  construed,  268 
(n),  269  (n),  271  (n). 

MARTIAL,  courts,  of  the  militia,  trial  and  punishment  by,  are  "  due  process 
of  law,"  and  valid,  476  (n).  (See  "  Due  Process  of  Law.") 

MARYLAND,  law  as  to  taxation,  509  (n). 

MASSACHUSETTS,  colonial  laws  of,  34-37 ;— law  as  to  taxation,  510  (n). 

MAY  OR  SHALL,  may  and  shall,  375-377,  375  (n). 

MEMBERS  of  the  Legislature,  motives  of  cannot  be  inquired  into,  54  (n). 

MICHIGAN,  law  as  to  taxation,  509  (n). 

MILITIA  courts  martial,  trial  by,  due  process  of  law,  476  (tl). 

MILLS,  mill  dams,  etc.,  whether  a  public  use,  447  (n). 

MINOR  offences,  jury  trial  for,  491  (n),  492  (n). 

MISCELLANEOUS  constitutional  provisions,  538-541,  538  (n)-540  (n). 

MIS  DESCRIPTION,  effect  of,  354. 

MISSOURI,  law  as  to  taxation,  510  (n). 

MISTAKE,  effect  of,  354  (n). 

"  MIXED  STATUTES"  of  the  civilians,  34. 

MONOPOLIES,  grants  of,  strictly  construed,  291-296 ;— in  general,  540  (n). 

MONTESQUIEU,  his  definition  of  law,  2. 

"MONTH,"  meaning  of,  358,  372  (n). 

MOTIVES  of  legislators,  not  to  be  inquired  into,  54  (n). 

MUNICIPAL  AID  to  railroads,  etc.,  429  (n)-431  (n). 

MUNICIPAL  CORPORATIONS,— charters  of,  and  laws  affecting  may  be  sub- 
mitted  to  a  popular  vote,  135  (n) ; — defective  ordinances  and  proceedings  of, 
when  mayv  be  validated  by  the  Legislature,  141  (n)-143  (n) ;  titles  of  stat- 
utes relating  to,  522  (n)-525  (n) ;  charters  of,  not  contracts,  582  (n)-584  (n). 

MUNICIPAL  ORDINANCES,  392-403;  local  self-government,  principle  of, 
392—394; — legislative  power  of  municipal  corporations,  395; — to  tax,  395, 
396, — for  purposes  of  public  safety,  396, — over  nuisances,  396,  397 ; — con- 
struction of,  397 ; — authority  to  pass,  to  be  strictly  followed,  397-399 ; — must 
not  conflict  with  the  general  law,  400,  401 ; — mode  of  passage  of,  402 ; — 
proof  of,  403 ; — not  contracts,  600. 

NATIONAL  Taxation,  507  (n),  508  (n).     (See  "  Taxation.") 

"  NAVIGATE,"  meaning  of,  378. 

NECESSITY  or  expediency  of  taking  private  property  for  public  use  to  be 
finally  determined  by  the  Legislature,  444,  444  (n), — or  by 'the  persons  to 
whom  the  power  is  delegated,  445  (n),  446  (n). 

NEGATIVE  STATUTES,  31, 32 ;— negative  meaning  when  implied  in  affirma- 
tive language,  31  (n) ; — rule  as  to  expressio  unius,  31  (n). 

NEGROES  and  mulattoes,  citizens,  562  (n),  563  (n). 


INDEX.  681 

NEW  TRIAL,  when  not  a  twice  putting  in  jeopardy,  573  (n),  574  (n), — for 

what  may  be  granted,  ib. 

NEW  YORK,  banking  system  of,  379-383 ;— law  as  to  taxation,  509  (n). 
"  NEXT  of  kin,"  meaning  of,  372  (n). 
NON  USER,  repeal  by,  96,  97. 
"  NOTICE,"  meaning  of,  378. 

NOTICE  OF  APPLICATION  for  the  passage  of  private  statutes,  52,  53. 
NUISANCES,  abating,  436  (n).     (See  «  Police  Powers.") 

OBJECT  of  statutes, — limiting  effect  of  on  general  words,  361  (n). 
OBLIGATION  OF  CONTRACTS,  580-642  :— 

What  is  a  contract  within  the  meaning  of  the  provision,  581-603,  581  (n)- 
589  (n), — all  private  contracts  executory  and  executed,  are,  581-590 ; 
— legislative  grants  to  private  persons  are,  590-592, — charters  of 
private  corporations  are,  592,  585  (n),  586  (n), — collateral  stipulations  in 
such  charters  are,  594,  586  (n), — special  privileges  in  a  bank  charter  as  to  its 
notes,  596, — exemptions  of  the  corporation  from  taxation,  597,  588  (n)-588 
(n),  but  such  exemption  must  be  express,  599, — stipulations  restraining  the 
State's  power  of  eminent  domain,  are,  596,,  588  (n), — stipulations  restraining 
the  State's  police  powers  are  not,  588  (n), — charter  of  private  corporations  to 
be  strictly  construed,  595, — compacts  between  two  States  are, — 595,  596, — 
statutes  creating  public  offices  are  not,  600,  585  (n), — municipal  ordinances 
are  not,  600, — marriage  is  not,  601-603,  581  (n),  583  (n), — charters  of  mu- 
nicipal corporations  are  not,  582  (n),  583  (n), — how"  far  contracts  made  by 
municipal  corporations  are  protected,  584,  583  (n), — statutory  permission  to 
sue  the  State  is  not,  584  (n), — licenses  are  not,  584  (n),  585  (n), — miscellane- 
ous cases,  588  (n) : — what  is  included  within  the  contract  as  forming  a  part 
of  it,  589  (n) : 

"  Obligation  "  of  a  contract  defined,  603  (n),  604  (n)  : 

What  State  laws  impair  the  obligation  of  contracts,  603-642,  605  (n)-622 
(n)  : — statutes  applying  directly  to  the  terms  of  a  contract,  606-622,  606  (n) 
-609  (n),— State  insolvent  or  bankrupt  laws,  606-622,  606  (n),  607  (n), — 
laws  affecting  private  corporations,  607  (n), — such  corporations  are  subject  to 
the  powers  of  taxation,  police,  and  eminent  domain,  607  (n),  608  (n), — police 
powers  over  such  corporations,  608  (n), — ditto,  taxing  power,  608  (n),  609 
(n), — ditto,  power  of  eminent  domain,  638,  639,  609  (n) ; — laws  which  oper  - 
ate  directly  on  the  remedy,  623-634,  609  (n)-617  (n),  what  is  the  remedy 
and  how  it  may  be  affected,  609  (n),  610  (n), — stay  laws,  611  (n),  612  (n), — 
exemption  laws,  612  (n), — homestead  exemptions,  613  (n), — arrest  for  debt, 

613  (n), — limitations  of  actions,  634-637,  613  (.1). — recording  acts,  614  (n), 
— administration  of  justice,  courts,  actions,  pleadings,  practice,  evidence,  etc. 

614  (n), — scaling  laws,  615  i(n), — redemption  laws,  615  (n),  616  (n), — ap- 
praisement laws,  616  (n), — miscellaneous  laws,  616  (n), — enlarging,  improv- 
ing, or  modifying  the  remedy,  617  (n) : — 

Effect  of  changes  in  State  constitutions,  637,  638 ; — statutes  affecting  mu- 
nicipal corporations,  618  (n) ; — laws  incidentally  or  indirectly  affecting  con- 
tracts, 619  (n) ; — who  can  complain,  620  (n)  : — 


682  INDEX. 

Power  of  the  Legislature  when  the  right  to  amend  or  repeal  charters  has 
been  reserved,  620  (n)-622  (n). 

OFFENCES  created  by  statute,  when  joint  and  when  several,  79; — minor, 
jury  trial  for,  491  (n),  492  (n). 

OFFICERS,  public,  relief  against  their  acts,  81,  82  ; — construction  of  statutes 
conferring  authority  upon,  329-331. 

OFFICES,  public,  are  not  contracts,  600,  585  (n). 

ONE  TRIAL  only  for  same  offence,  572,  573,572  (n)-575  (n).  (See  "Jeo- 
pardy.") 

"OPERATIVE,"  372  (n). 

"  OR"  AND  "AND,"  use  of,  371  (n). 

ORDINANCES,  municipal,  392  403.     (See  "  Municipal  Ordinances.") 

"  OWNERS  OR  OCCUPIERS,"  meaning  of,  372  (n). 

"PAR,"  meaning  of,  372  (n). 

'•  PARI  MATERIA,"  statutes  in,  construction  of,  209-212.  (See  "  Construc- 
tion, etc.") 

PARKS  and  squares,  a  public  use,  447  (n). 

PARLIAMENT  of  Great  Britain*,  power  of,  120,  121 ;— ditto,  to  pass  bills  of 
attainder,  121. 

"PARTICULAR  SERVICES,"  provision  in  regard  to.  in  certain  States,  512. 

PARTICULAR  WORDS,  construction  of,  371-379;— effect  of,  in  qualifying 
general  words.  (See  "  General  Words.") 

PASSAGE  of  statutes,  proof  of,  55,  55  (n). 

PATENTS  of  land,  387,  392.   (See  "  Grants  of  Lands.") 

PAUPER,  settlement  of,  statutes  relating  to,  when  retrospective,  162  (n). 

PENAL  STATUTES,  32,  333-336 ;— pleading  in  actions  on,  89;— to  be 
strictly  construed,  279-287, — ancient  rule,  280-282, — relaxed  in  modern 
times,  282-287, — examples,  279  (n), — construction  not  to  be  so  strict  as  to 
defeat  the  plain  intent,  279  (n),  280  (n) ; — treble  damages  in,  334; — number 
of  penalties,  336. 

PENALTY, — in  a  statute  implies  prohibition,  71 ; — statutory,  when  the  only 
remedy,  76,  77, — when  election  between  it  and  common-law  remedy,  75-77 ; 
— when  single  and  when  several,  79  ; — effect  of  on  contracts,  339 ; — when  ex- 
clusive and  when  cumulative,  341-345 ; — when  statutes  affecting  are  ex  post 
facto,  559  (n),  560  (n). 

PEOPLE,  submission  of  laws  to  vote  of,  135-138,  135  (n)-137  (n). 

"  PERISHABLE,"  meaning  of,  372  (n). 

"  PERSON,"  meaning  of,  372  (n). 

PERSONS  NOT  SUI  JURIS,  private  statutes  in  relation  to,  140  (n),  141  (n), 
147-151. 

<•  PERSONAL  PROPERTY,"  meaning  of,  372  (n). 

"PERSONAL  REPRESENTATIVE,"  meaning  of,  372  (n). 

PERSONAL  STATUTES  of  the  civilians,  33. 

PETTY  OFFENCES,  436  (n)  (See  "Police  Powers") ;— jury  trial  for,  491 
(n),  492  (n). 


INDEX.  683 

PHILLIMORE'S  rules  of  construction,  248,  249. 

PLACE  of  taxation,  508  (n),  509  (n).     (See  "Taxation.") 

PLANK-KOADS,  in  highways,  4. 

PLEADINGS,  in  actions  founded  on  statutes,  89-93, — forms  of  action  on  stat- 
utes, 89,  90; — when  pleading  should  refer  to  the  statute,  90,  91 ; — indict- 
ments, 91,  92; — on  a  proviso  or  exception,  93. 

POLICE  POWERS,  435-441 ;  nature  of  and  examples,  435-440 ;— over  pub- 
lic safety  or  health,  440,  437  (n)  ; — nature  of,  435  (n) ; — over  stray  animals, 

435  (n) ;  over  nuisances,  436  (n), — dog  laws,  436  (ri), — burial  of  the  dead, 

436  (n), — intoxicating  liquors  and   license  laws,  436  (n), — petty  offences, 

436  (n) ;  U.  S.  has  none  in  the  States,  437  (n) ; — other  examples,  435  (n)- 

437  (n) ; — exercise  of,  not  a  taking  of  property  for  public  use,  454  (n), 
455  (n). 

POLITICAL  questions,  U.  S.  Supreme  Court  will  not  pass  upon,  159  (n). 

POPULAR  vote,  submission  of  laws  to,  135-138,  135  (n)-137  (n). 

"  POSSESSION,"  meaning  of,  372  (n). 

PREAMBLE  of  a  statute,  42-44; — not  essential,  43  ;  effect  of  in  interpreting, 
43,  44,  45  (n). 

PRESUMPTION  as  to  the  law  of  of  a  foreign  State,  12,  13  (n). 

PRESUMPTIONS  in  construction,  228  (n). 

PRIVATE  CORPORATIONS,  how  far  laws  affecting  impair  obligation  of  con- 
tracts. 607  (n)-609  (n). 

PRIVATE  PROPERTY  taken  for  public  use,  419-425, 442-474;— provisions 
in  the  State  Constitutions,  420  (n)-423  (n) ; — provision  in  U.  S.  Const,  only 
applies  to  the  U.  S.  Government,  419  (n) ; — powers  of  States  over  private 
property,  422,  423, — embrace  powers  of  taxation,  of  police,  and  of  eminent 
domain,  423-424 : 

Power  of  EMINENT  DOMAIN,  442-474. 

What  may  be  taken,  442,  442  (n),  examples,  442  (n), — one  railroad  cross- 
ing another,  443  (n). 

Question  whether  the  use  is  public  is  a  judicial  one,  and  cannot  be  finally 
decided  by  the  Legislature,  443  (n),  444  (n) : 

Power  of  Legislature  to  decide  as  to  the  necessity  of  taking  if  the  use  is 
public,  444,  444  (n) ;  delegation  of  the  power,  445  (n),  446  (n),  452-454,  452 
(n),  453  (n), — may  be  delegated  to  corporations,  453,  454, — and  to  individu- 
als, 454,  452  (n), — may  be  exercised  by  the  U.  S.  within  the  States,  453  (n) ; 
— power  of  Legislature  to  compel  towns,  etc.,  to  construct  highways,  446  (n). 
What  is  a  public  use,  See  "  PUBLIC  USE." 

What  constitutes  a  "taking"  of  private  property,  454—463,  454  (n)-459 
(n) ; — there  must  be  a  physical  interference,  456, 457, 455  (n)  ; — indirect  and 
consequential  injuries  are  not  a  taking,  457,  458,  455  (n)-457  (n), — such  in- 
juries caused  by  streets,  etc.,  459-461,  456  (n), — railroads,  461, — interfering 
with  access  to  lands,  456  (n),  457  (n), — indirect  injuries  to  turnpikes,  toll 
bridges,  etc.,  460,  455  (n),  456  (n), — diversion  of  public  waters,  455  (n), — 
this  rule  criticised,  462,  463  ; — injuries  done  under  exercise  of  police  powers, 


684  INDEX. 

when  not  a  "taking."  454  (n),  455  (n) ; — "injuriously  affecting"  in  some 
State  constitutions,  457  (n)  ; — flowirg  lands  is  a  "  taking,"  455  (n)  ; — further 
examples  of  taking,  457  (n),  458  (n), — imposing  additional  easements,  458 
(n),  459  (n), — viz,  turnpikes  or  plank-roads  in  highways,  458  (n), — steam 
railroads  in  ditto,  458  (n), — horse  railroads  in  ditto,,  458  (n),  459  (n). 

Compensation  for  taking,  463-471,  463  (n)-467  (n).     (See  "  Compensa* 
tion.") 

Estate  taken,  whether  a  fee  or  an  easement,  472,  473,  472  (n).    Provisions 
in  regard  to  eminent  domain  do  not  limit  the  power  of  taxation,  501. 

PRIVATE  SCHOOLS,  local  taxation  for, 431  (n). 

"PRIVATE  STATUTES,"— must  be  pleaded,  27,— what  persons  they  bind, 
27, — whether  they  bind  the  States,  28  ; — proof  of,  94; — relating  to  persons 
not  sui  juris,  charities,  etc.,  140  (n),  141  (n)  ; — titles  and  subjects  of,  528  (n), 
529  (n).  (See  "  Titles,  etc.") 

PRIVATE  USE,  property  cannot  be  taken  for,  446-451. 

PROCEDURE,  statutes  regulating,  retrospective  effect  of,  163  (n) ; — to  be 
strictly  construed,  275-279; — laws  changing  are  not  ex  post  facto,  560  (n), 
561  (n). 

"  PROCEEDING,"  meaning  of,  372  (n). 

PROCEEDINGS,  summary,  statutes  authorizing  to  be  strictly  construed,  when 
judicial,  299-302,— ditto,  when  administrative,  302-306. 

PROMULGATION  of  statutes,  67,  67  (n). 

PROOF  of  statutes,  of  public,  93, — private,  94,— foreign,  94,  95,  362-364,— 
of  ancient,  95. 

PROOF  OF  THE  PASSAGE  OF  STATUTES,  by  the  statute  book,  55,— 
by  the  engrossed  bills  on  file,  55,  55  (n), — by  the  journals,  55  (n). 

"  PROPERTY,"  meaning  of,  373  (n). 

PROPERTY,  PRIVATE.     (See  "  Private  Property.") 

PROSECUTIONS,  pending,  effect  of  repeal  on,  111,  112, 109  (n),— ditto,  when 
there  is  a  saving  clause,  111. 

"PROVINCE  of  Jurisprudence  Determined,"  by  Austin,  analysis  of,  187-189. 

PROVISOES  in  statutes,  effect  of,  49,  49  (n),— how  pleaded,  93. 

"  PROXIMA  causa  non  remota  spectatur"  355. 

PROXIMATE  cause,  rule  as  to,  355,  356. 

PUBLICATION  of  statutes,  55  (n),  540  (n). 

PUBLIC  OFFICERS,  relief  against  their  acts,  81,  82  ;— statutes  giving  author- 
ity to,  construction  of,  329-331. 

PUBLIC  PURPOSES,  taking  property  for,  see  "  Private  Property." 

PUBLIC  SAFETY  and  health,  laws  protecting,  440,  437  (n).  (See  "  Police 
Powers.") 

PUBLIC  SCHOOLS,  the  Bible  and  religious  instruction  in,  513. 

PUBLIC  STATUTES,  24-27,— taken  judicial  notice  of,  26,— proof  of,  93. 

PUBLIC  USE,— What  is,  and  examples  of,  446  (n)-450  (n),— railroads  and 
all  means  of  transport,  446  (n), — gas  companies,  446  (n), — drainage  and 
other  like  measures  for  the  public  health,  446  (n),  447  (n), — public  schools, 


INDEX.  685 

447  (n), — U.  S.  forts,  447  (n), — cemetery,  447  (n), — public  squares  and 
parks,  447  (n), — depots,  etc.,  for  railroads,  447  (n), — mills,  mill  dams,  etc.,  in 
some  States,  447  (n), — township  roads,  448  (n), — taking  for  the  benefit  of 
the  U.  S.,  448  (n) ; — discussion  of  the  principle  and  general  rules,  448  (n)- 
450  (n)  ; — power  of  the  courts  to  decide  whether  the  use  is  public  or  not, 
443  (n),  444  (n) ; — delegation  of  powers  to  take  property  for,  452^154,  452 
(n),  453  (n) ;— what  constitutes  a  "taking"  for,  454-463,  454  (n)-459  (n) ; 
— compensation  for  taking  for,  463-471,  463  (n)-467  (n).  (See  "Private 
Property,  etc.") 

PUBLIC  WATERS,  laws  regulating,  440,  441.     (See  "  Police  Powers.") 

PUNCTUATION,  effect  of  in  construction,  225  (n). 

PUNISHMENTS,  cruel,  under  U.  S.  Constitution,  580. 

"  PURCHASER,"  meaning  of,  373  (n). 

PURVIEW,  or  body,  of  a  statute,  45. 

QUORUM,  what  constitutes  a,  331,  331  (n). 

RAILROADS,  — municipal  aid  to,  429(n)-431  (n);— power  of  one  to  cross 
track  of  another,  443  (n),  473  ;  — a  public  use,  446  (n),— also  their  depots, 
shops,  etc.,  447  (n) ;  — power  to  take  private  property,  452-454, 452  (n) ;— in 
streets  and  highways,  453  (n),  459  (n). 

READINGS  of  bills,  three,  539  (n). 

"  REAL  statutes  "  of  the  civilians,  33. 

RECORDING  acts,  do  not  impair  obligation  of  contracts,  614  (n). 

REDEMPTION  laws,  effect  of,  on  obligation  of  contracts,  615  (n),  616  (n). 

RE-ENACTMENT,  how  far  effects  a  repeal  of  the  prior  law,  95  (n),  96  (n). 

REFERENCE  statutes,  construction  of,  229  (n). 

RELIEF  against  acts  of  public  officers,  81,82  ;  none  in  equity  against  a  posi- 
tive statute,  83. 

RELIGIOUS  freedom  and  toleration,  512-515,  512  (n);— in  public  schools, 
513;  — belief  of  witnesses,  514  ;— provisions  in  Massachusetts  and  in  Con- 
necticut, 514,  515  ;— observance  of  Sunday,  512  (n);— under  the  U.S.  Con- 
stitution, 571. 

REMEDIAL  STATUTES,  defined, 32; -when  retrospective,  162(n),163(n);  — 
construction  of, 308-3 16,— general  rules,  308-310, 308  (n),— examples,  308  (n), 
—partly  remedial  and  partly  penal,  310  ;— equity  of  a  statute,  311-315,— 
examples,  311  (n) ;— liberal  construction,  examples  of,  312-315,312  (n). 

REMEDIES,— for  violation  of  statutes,  74-78,— election  between  common 
law  and  statutory ,  75-77  ;  — when  cumulative,  100  (n),  341-345,— when  ex- 
clusive, 341  (n) ;— pending,  effect  of  a  repeal  on,  113-115,  109  (n);— civil, 
laws  affecting  not  ex  post  facto,  561  (n). 

REMEDY,  the,— what  is  and  how  maybe  changed,  609  (n),  610  (n) ;— when 
laws  affecting  impair  the  obligation  of  contracts,  623-634,  609  (n)-617  (n). 
(See  "  Obligation  of  Contracts.") 

REPEAL  OF  CHARTER,— power  of  Legislature  over,  when  the  right  has 
been  reserved,  620  (n)-622  (n). 


686  INDEX. 

REPEAL  OF  STATUTES,  95-1 16;  -Mode  of,-express,  95,96  (n),-by  non- 
user,  96,  97,  — by  re-enactment  or  amendment,  95  (n),  96  (n) ;— by  implication. 
(See  "  Repeal  by  Implication.") 

Effect  of,  108-116 ;— general  rule,  108-110 ;— effect  on  pending  judicial 
proceedings,  111,  112, 109(n),— of  a  saving  clause,  111,— repeal  of  a  statute 
making  specified  acts  illegal,  112, — on  pending  civil  proceedings,  113,  —  where 
the  statute  modifies  existing  remedies,  114, 115, — repeal  of  a  repealing  stat- 
ute, 116,— revival  of  old  law,  108  (n),— on  individual  rights,  108(n)-110  (n), 
—on  vested  rights,  108  (n),  109  (n),— of  repeal  of  statute  of  limitations, 

109  (n),— of  a  license  law,  109  (n),  — of  a  single  section,  96 (n);  unconstitu- 
tional repealing  statute,  effect  of,  110(n); — effect  of  amendatory  statutes, 

110  (n),  111  (n). 

REPEAL  BY  IMPLICATION,  97-107  ;-general  rule  that  subsequent  statute 
without  negative  words  does  not  repeal  unless  clearly  repugnant,  97-104 
98  (n), 99  (n),— when  the  subsequent  statute  does  repeal  without  express  re- 
pealing words,  104, 105,  99  (n),  100  (n), — the  inconsistency  must  be  complete, 
98  (n),— examples,  100  (n)-102  (n),— such  repeal  not  favored,  105,  106, 
98  (n)  ;— additional  remedies  when  cumulative,  100  (n) ;— extent  of  the  re- 
peal, 102  (n),  103  (n)  ;— whether  Legislature  can  prescribe  a  mode  of  repeal, 
103  (n) ;— conflict  between  parts  of  the  same  statute,  105  ;— repeal  by  change 
of  State  Constitution,  107. 

REPEALING  CLAUSE,  effect  of,  48. 

REPEALING  STATUTES,  32, 33. 

REPRESENTATION  as  the  basis  of  taxation,  506  (n). 

RETROSPECTIVE  STATUTES,  160- 173; -forbidden  in  some  Constitutions, 
160, 161 ;  — general  rule  of  construction  that  the  effect  shall  not  be  retro- 
spective, 161-164,  161  (n);— what  are  prohibited  by  the  U.S.  Constitution, 
165  ; — may  be  passed  unless  forbidden  by  State  Constitution,  but  courts  lean 
strongly  against  such  a  construction,  166-173  ;— intent  must  be  certain,  167- 
173, 161  (n) ;  — examples,  170-172  ;— effect  on  vested  rights,  161  (n) ;— stat- 
utes of  limitation  when  retrospective,  161  (n),  162  (n),— statutes  relating  to 
dower,  ditto,  162  (n),— those  relating  to  settlement  of  paupers,  ditto,  162  (n); 
amendatory  statutes,  ditto,  162  (n) ;— remedial  statutes,  162  (n),  163  (n)  ;  — 
relating  to  procedure,  163?(n). 

RETROSPECTIVE  EFFECT  of  laws,  346-353,  346  (n) ;— where  forbidden 
by  constitutions,  347, — how  far  permitted,  347-353 ; — how  far  may  affect 
vestei  r  ghts,  346  (n). 

REVENUE  LAWS,  contracts  in  violation  of,  72,  340  ;— how  construed,  288, 
289,  332, — liberally  construed,  288  (n). 

REVENUE  BILLS,  origin  of,  539  (n). 

REVISION  of  statutes,  construction  of,  229  (n) ;— effect  of,  365,  366,  365  (n). 

RIGHTS,  individual,  effect  of  repeal  on,  108  (n)-110  (n) ;— vested,  see  "  Vested 
Rights." 

ROADS,  a  public  use,  446  (n). 

ROMAN  law,  nature  of,  17,  18. 

RULES  of  construction,  Mr.  Sedgwick's,  325,  326. 


INDEX.  687 

SAFETY,  public.     (See  "  Police  Powers.") 

"  SALE,"  meaning  of,  373  (n). 

SALES,  in  violation  of  statutes,  339,  340. 

SAVING  clause,  effect  of,  47,  48,  47  (n),— in  repealing  statutes,  111. 

SCALING  laws,  effect  of  on  obligation  of  contracts,  615  (n). 

SCHEDULES,  in  statutes,  51. 

SCHOOL  fund,  539  (n). 

SCHOOLS,  PRIVATE,  taxation  in  aid  of,  see  "  Educational  Institutions." 

SCHOOLS,  PUBLIC,  a  public  use,  447  (n) ;— Bible,  etc.,  in,  513. 

SEARCHES  and  seizures,  origin  of  the  constitutional  guaranty,  498  ; — pro- 
visions in  State  constitutions,  499  -—effect  of,  500, 500  (n) ; — under  the  U.  S. 
Constitution,  571. 

SECTION  of  a  statute,  repeal  of,  96  (n). 

SERVICE,  by  publication,  when  valid,  476  (n),  477  (u). 

SERVICE,  fugitives  from,  569,  570. 

SEVERAL  penalties  for  the  violation  of  statutes,  79. 

SHALL  or  may,  use  of,  375-377,  375  (n). 

"  SOIL,"  meaning  of,  373  (n). 

SOURCES  of  the  municipal  law,  3-20. 

SPECIAL  laws,  when  forbidden,  535  (n),  536  (n),  539  (n). 

SPECIFIC  taxes,  507,  508. 

SPEECH,  freedom  of,  571. 

STAMP  acts,  strictly  construed,  307. 

STARE  DECISIS,  rule  of  in  construction,  214,  215/227  (n). 

STATE,  construction  of  laws  affecting  the,  337 ; — when  bound,  337  (n) ; — per- 
mission to  sue  the,  not  a  contract,  584  (n\. 

STATES,  effect  of  other  State  statutes  within,  60-65  ; — suits  against,  537,  538. 

STATUTES, — of  England  adopted  by  the  State  constitutions,  10-12  ; — classes 
and  divisions  of,  21-34 ; — public  or  general,  24-27  ; — private  or  special,  24- 
27  ;  declaratory  or  innovating,  28, 29, — affirmative,  29,  30; — negative,  31, 32, 
31  (n), — remedial,  32, — penal,  32,  repealing,  32,  33. 

Parts  of,  38-51  ; — the  title,  39-41, — subtitles,  39  (n), — the  commence- 
ment, 41,  42, — the  preamble,  42-44,  45  (n), — the  purview  or  body,  45, — 
clauses  of,  45-49,  47  (n), — provisoes  in,  49,  49  (n), — exceptions,  50, — sched- 
ules, 51. 

Attributes  and  incidents  of,  52-118  ; — mode  of  passage,  52-55,  55  (n),  56 
(n), — authority  and  jurisdiction,  56-69, — time  when  they  take  effect,  65-68, 
67  (n), — contracts  in  violation  of,  69-74, — remedies  for  the  violation  of,  74- 
78, — limitations  of  actions  on,  83-86, — pleadings  in  actions  on,  89-93, — 
proof  of,  93-95,— repeal  of,  95-116, — copyright  in,  116-118. 
Submission  of  to  popular  vote,  135-138,  135  (n)-137  (n). 
Special  kinds,  those  which  are  quasi  judicial  in  their  nature,  138-152  ;— 
retrospective  or  retroactive  statutes,  160-173. 

Construction  of: — power  of  the  courts  over,  174-179,  and  to  decide  upon 
their  constitutionality,  180-182  ; — in  part  materia,  construction  of,  209-212  ; 


688  INDEX. 

— language  of,  how  construed,  219-230; — revision  of,  how  construed,  229 
(n) ; — strict  and  liberal  construction,  250-328  ; — in  derogation  of  the  com- 
mon law,  267-275  ;: — remedial,  construction  of,  308-316  ; — directory  or 
mandatory,  316-325; — delegating  authority  to  public  officers,  329-331  ; — 
revenue,  332 ; — penal,  333-336 ; — their  effect  upon  contracts  in  violation  of 
them,  337-341 ; — their  retroactive  effect,  346-353  ; — interpretation  and  proof 
of  foreign,  362-364 ; — revision  of,  365,  366  ; — construction  of  by  the  U.  S. 
courts,  366-370. 

Power  of  the  courts  to  pronounce  them  unconstitutional,  406-414. 
Titles  and  subjects  of,  517-530;  amendments  of,  530-533. 
STATUTORY  FORFEITURE,  78. 

STATUTORY  PROVISIONS,  waiver  of,  86-88,  358,  359. 
STATUTORY  REMEDY,  when  must  be  followed,  76,  77. 
STAY  laws,  effect  of  on  obligation  of  contracts,  611  (n),  612  (n). 
"  STEAL,"  meaning  of,  378. 

STRAY  animals,  435  (n).     (See  "  Police  Powers.") 
STREETS,  railroads  in,  458  (n),  459  (n) ; — injuries  caused  by  alteration  of,  459- 

461,455  (n),  456  (n). 

STRICT  CONSTRUCTION,  cases  of,  266-308  ;— viz.,  statutes  conflicting  with 
a  constitution,  266,  267, — construction  preferred  which  makes  a  statute  con- 
stitutional, 267  (n) ; — 

Statutes  in  derogation  of  the  common  law,  267-275, — old  rule,  267-272, 
267  (n),  268  (n), — original  reason  for  the  rule,  273, — partially  abandoned  at 
the  present  day,  273-275,  270  (n),  271  (n), — how  applied  to  certain  statutes, 
2t58  (n),  269  (n). 

Statutes  prescribing  forms  of  procedure  or  modes  of  proof,  275-279. 
Penal    statutes,   279-287, — ancient   rule,  280-282, — modified  in  modern 
times,  282-287, — examples  of,  279  (n), — plain  intent  should  not  be  defeated, 
279  (n),  280  (n). 

Revenue  laws,  288,  289,— liberally  construed,  288  (n). 
Usury  laws,  290; — charters  of  corporations,  291-296;  strictly  construed 
against  the  grantee,  291  (n),  292  (n). 

Statutes  authorizing  exemptions  or  against  common  right,  296-298. — ex- 
amples of  derogating  from  common  right,  296  (n), — exemptions  from  taxa- 
tion, 297  (n). 

Statutes  authorizing  summary  proceedings,  299-306, — summary  judicial 
proceedings,   299-302, — administrative    proceedings,   302-306, — e.   <?.,    tax 
sales,  303-306, — stamp  acts,  307, — statutes  giving  costs,  307. 
SUBJECT-MATTER  of  statutes,  359. 
SUBJECTS  of  laws.     (See  "Titles  and  Subjects.") 
SUBSEQUENT  clause,  construction  of,  229  (n). 
"  SUBSEQUENT  purchasers,"  meaning  of,  373  (n). 
"  SUCH,"  meaning  of,  373  (n). 

SUI  JURIS,  private  statutes  relating  to  persons  not,  140  (n),  141  (n). 
"  SUIT,"  meaning  of,  373  (n). 


INDEX.  689 

SUITS  against  the  State,  537,  538. 

SUMMARY  proceedings,  strictly  construed,  viz.,  judicial,  299-302, — adminis- 
trative, 302-306  ; — when  valid,  as  being  "due  process  of  law,"  477  (n). 
SUNDAY,  laws  regulating,  14  (n),  512  (n) ; — contracts  in  violation  of,  341. 
SURPLUSAGE,  effect  of,  354. 

TAKING  private  property  for  public  use  ;  the  necessity  of,  to  be  determined 
by  the  Legislature,  444,  444  (n), — or  by  those  to  whom  the  power  has  been 
delegated,  445  (n),  446  (n)  ;— who  may  take,  452-454,  452  (n),  453  (n)  ;— 
taking  for  private  use  forbidden,  446-451. 

What  constitutes  a  "taking,"  454-463,  454  (n)-459  (n)  ; — compensation 
for,  463-471.     (See  "  Compensation,  etc."  and  "  Private  Property,"  etc.) 
TAXATION,  State  power  of,  425-434,  501-512;— in  general,  425,  425  (n), 
426  (n). 

Local  assessments,  principles  and  rules  governing,  426-434,  426  (n)- 
429  (n). 

What-  objects  are  public,  so  that  local  taxes  may  be  laid  in  their  support, 
429  (n),  et  seq , — e.  g.  municipal  aid  to  railroads,  429  (n)-431  (n), — to  educa- 
tional institutions,  431  (n), — bounties  to  volunteers,  432  (n), — other  private 
and  local  matters,  431  (n),  432  (n). 

Limitations  on  the  powers  of,  501-512; — not  limited  by  the  constitutional 
provisions  relating  to  the  taking  of  private  property,  501, — is  generally  lim 
ited  by  the  State  constitutions — certain  of  such  provisions,  502,  503. 

"  Equal  and  uniform"  taxation,  construction  of  provisions  requiring,  504- 
510,  503  (n)-506  (n), — specific  taxes  not  forbidden,  507,  508, — application 
of  the  rule  of  uniformity  to  licenses,  503  (n),  504  (n), — to  county  taxation, 

504  (n), — to  exemptions  and  commutations,  510-512,  504  (n),  505  (n), — 
what  violates  the  requirement  of  uniformity,  505  (n), — effect  of  omissions, 

505  (n), — what  does  not  violate,  505  (n),  506  (n). 

Taxation  and  representation,  connection  between,  506  (n).  State  and  na- 
tional taxation,  507  (n),  508  (n) ; — double  taxation  and  the  place  of  laying 
the  tax,  508  (n),  509  (n) ; — what  may  be  sold  for  taxes,  509  (n), — who  may 
complain,  509  (n). 

Certain  special  restrictions  in  some  States,  509  (n),  510  (n). 

TAXES  ON  CORPORATIONS,  when  provisions  exempting  from,  are  con- 
tracts, 597-599,  586  (n)-588  (n). 

TAX  PROCEEDINGS,  irregular  and  defective,  power  of  Legislature  to  validate 
by  a  subsequent  statute,  142  (n),  143  (n). 

TAXING  POWER  of  the  States,  over  passengers  passing  into  or  out  of  the 
State,  562  (n), — over  non-resident  traders,  562  (n), — or  freight  passing  into 
or  out  of  the  State,  563  (n), — effect  of  on  the  obligation  of  contracts,  608  (n), 
609  (n). 

TECHNICAL  words,  construction  of,  221-223,  224  (n),  225  (n). 

TENURE  of  land  from  the  Government,  387. 

TERRITORIAL  authority  and  effect  of  statutes,  59-65. 

44 


690  INDEX. 

TEST  OATHS,  when  laws  prescribing,  are  ex  post  facto,  557  (n),  558  (n). 

THREE  readings  of  bills,  539  (n). 

TIME,  when  statutes  take  effect,  65-68, — old  English  rule,  65, — French  rule, 
66, — rule  in  U.  S.,  66,  67,  67  (n), — amendatory  statutes  relate  back  to  the 
time  of  tb,e  original  act,  68  ; — computation  of,  356-358.  (See  "  Computa- 
tion, etc.") 

TITLE,  the,  of  a  statute,  39-41  ; — old  English  rule  in  reference  to,  when  may 
be  referred  to  as  an  aid  in  construction,  39,  39  (n), — made  important  by  the 
provisions  of  some  State  constitutions,  39  (n),  40,  41, — subtitles,  39  (n). 

TITLES  AND  SUBJECTS  OF  STATUTES,  517-530,  518  (n)-530  (n)  :— 

Constitutional  provisions,  518  (n), — evils  they  were  designed  to  remove, 
517-519. 

Construction  of  these  provisions,  520-530, — held  directory  in  Ohio  and 
California,  520  (n), — nature  of  them,  519  (n), — when  the  title  sufficiently  ex- 
presses the  subject,  520  (n), — when  is  there  one  subject,  521  (n), — in  char- 
ters of  corporations,  521  (n), — in  statutes  relating  to  municipal  corporations, 
522  (n)-525  (n), — in  tax  laws,  525  (n), — in  laws  regulating  the  administra- 
tion of  justice,  525  (n), — in  amendatory  statutes,  526  (n), — in  miscellaneous 
statutes,  527  (n), — effect  of  non-conformity  with  the  provisions,  528  (n) ; — 
local  and  private  statutes  in  N.  Y.  and  Wise.,  528  (n),  529  (n) ; — collection 
ofcfises,  530  (n). 

TOLERATION,  religious,  512-515,  512  (n). 

TOWNS,  compellable  by  Legislature  to  construct  highways,  446  (n). 

TRANSPORTATION,  means  of,  a  public  use,  446  (n), 

TRAVEL,  means  of,  a  public  use,  446  (n). 

TREATIES,  construction  of,  384-387 ;— supreme  law  of  the  land,  385,  556  (n), 
— power  of  U.  S.  Government  to  make,  385, — effect  of  war  on,  386. 

TRIAL  BY  JURY,  482-498.     (See  "Jury  Trial.") 

TRUST  funds,  541. 

"TURNED  loose,"  meaning  of,  373  (n). 

TURNPIKES  in  highways,  458  (n). 

TWO-THIRDS,  majority  of,  meaning  of,  533  (n),  534. 

UNANIMITY  of  verdict,  493  (n). 

UNCONSTITUTIONAL  repealing  statute,  effect  of,  110  (n). 

UNCONSTITUTIONAL  STATUTES,  406-414 ;  in  part,  413  (n). 

UNIFORM  OPERATION  of  general  laws,— provisions  of  certain  constitu- 
tions, 534  (n), — what  are  general  laws,  534  (n),— construction  of  the  consti- 
tutional requirements,  434  (n),  435  (n). 

UNIFORMITY  OF  TAXATION,  504-510,  503  (n)-506  (n).  (See  "Taxa- 
tion.") 

UNITED  STATES,  no  common  law  of,  13 ; — courts  of,  their  construction  of 
State  statutes,  366-370,  367  (n) ; — has  no  police  powers  within  the  States' 
jurisdiction,  437  (n) ; — erections,  buildings,  etc.,  of,  wjien  a  public  use,  448 
(n),  453  (n) ;— taxation  by,  507  (n).  508  (n). 


INDEX.  691 

UNITED  STATES  CONSTITUTION,— provisions  of  which  directly  protect 
private  or  personal  rights,  545-548, — these  provisions  not  addressed  to  the 
State  governments,  547  (n),  548  (n) ; — legislative  power  of  Congress,  nature 
of,  549,  550. 

Construction  of,  general  rules  of,  551-556, — political  rules,  551, — uncon- 
stitutional ity  must  be  clear,  552, — contemporaneous  interpretation,  552, — ex- 
trinsic facts  in  aid  of,  552,  553, — words  taken  in  their  natural  sense,  553, — 
transposition  of  clauses,  553,  554, — reference  to  clauses  stricken  out,  554 ; — 
acts  void  in  part,  554, — effect  of  unconstitutionally,  554, — power  of  the  Fed- 
eral judiciary,  555. 

Treaties,  force  and  effect  of,  under,  556  (n).  (See  "Treaties.")  Habeas 
corpus,  556  (see  "Habeas  Corpus") : — bills  of  attainder,  557  (see  "  Bills  of 
Attainder") ; — ex  post  facto  laws,  557-560  (see  "  Ex  post  facto  Laws") ; — 
judicial  proceedings,  faith  and  credit  given  to,  551,  562  (see  "Judicial  Pro- 
ceedings");— citizenship,  privileges  and  immunities  of,  562-568,  562  (n)- 
566  (n)  (see  ''Citizenship"); — fugitives  from  justice,  568,  561),  and  from 
service,  569,  470  (see  "  Fugitives,"  etc.) ; — religious  freedom,  571  ; — search 
warrants  and  seizures,  571 ; — only  one  trial  for  same  offence,  572,  573,  572 
(n)-575  (n)  (see  "  Jeopardy  ") ; — due  process  of  law.  576,  577  ; — jury  trial, 
577-579  ; — excessive  bail,  etc.,  5SO ; — obligation  of  contracts,  580-642.  (See 
"  Obligation  of  Contracts.") 

UNREASONABLE  conditions,  when  void,  478  (n). 

USAGE,  effect  of  on  construction,  215-218, — of  a  particular  place,  216  (n). 

USE,  PRIVATE,  property  cannot  be  taken  for,  446-451.  (See  "  Private  Prop- 
erty, etc."). 

USE,  PUBLIC,— how  far  a  matter  for  courts  to  decide,  443  (n),  444  (n) ;— what 
is,  and  examples  of,  446  (n)-450  (n).  (See  "  Public  Use"  and  "Private 
Property,  etc.") 

USURY  laws,  how  construed,  290,  291. 

VATTEL'S  rules  of  construction,  230-243. 

VERDICT,  unanimity  of,  493  (n). 

VESTED  RIGHTS,— effect  of  repeal  on,  108  (n),  109  (n) ;— Legislature  cannot 
interfere  with,  138  (n)-l44  (n),  152; — effect  of  retroactive  statute  on, 
161  (n),  346  (n).  , 

General  discussion  of  the  doctrine,  643-662, 643  (n)-645  (n) ; — general  effect 
of  the  constitutional  guaranties  over  legislative  power,  646-653 ; — examples  of 
rights  over  which  Legislature  has  power,  654-660, — of  judicial  proceedings, 
ditto,  655-660  ; — statutes  of  limitation,  658, — change  in  rules  of  evidence, 
658, — and  in  remedies  generally,  659,  660 ; — examples  of  rights  which  can- 
not be  affected  by  subsequent  legislation,  643  (n)  ; — examples  of  rights  and 
interests  which  may  be  thus  affected,  644  (n),  645  (n). 

VIOLATION  OF  STATUTES,— contracts  in,  69-74 ;— remedies  for,  74-78  ; 
— penalties,  78,  79, — not  excused  by  good  faith,  79,  80. 

VOLUNTEERS,  bounties  to,  432  (n). 

VOTERS,  registration  of,  laws  requiring  not  ex  post  facto,  559  (n). 


692  INDEX. 

WAGERS,  statutes  in  relation  to,  361. 

"  WAGON,"  meaning  of,  373  (n). 

WAIVER, — of  statutory  provisions,  86-88,  358,  359  ; — of  constitutional  ditto, 
88  ; — of  objection  to  the  constitutionality  of  a  statute,  88  (n) ; — of  jury  trial, 
495  (n).  (See  "Jury  Trial.") 

WATERS,  grants  of,  391,392; — public,  diversion  of,  not  a  taking  of  private 
property,  455  (n),  and  see  "  Public  Waters." 

WITNESSES,  religious  belief  of,  514  ; — confronting  of,  provision  in  U.S.  Con- 
stitution relating  to,  construed,  548  (n). 

WORDS,— when  to  be  taken  in  their  ordinary  sense,  220,  224  (n),  225  (n);— 
technical,  construction  of,  221-223,  224  (n),  225  (n) ; — general,  how  qualified, 
(see  "General  Words"); — particular,  construction  of,  371-379. 

"  YEAR,"  meaning  of,  358. 


14  DAY  USE 

RETURN  TO  DESK  FROM  WHICH  BORROWED 

LOAN  DEPT. 

This  book  is  due  on  the  last  date  stamped  below, 
or  on  the  date  to  which  renewed.  Renewals  only: 

Tel.  No.  642-3405 

Renewals  may  be  made  4  days  priod  to  date  due. 
Renewed  books  are  subject  to  immediate  recall. 


JAN    J197179 


JAM  2i  1971 


RETUS.-15D 


MAR  24  1971 


LOAM    AHG 


FED    8  1980 


R 


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r?«_!l4  *»  University  of  California 


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